About a month or so ago, the Merit Systems Protection Board (MSPB) requested stakeholder input. Thanks to this site’s alert readership, I had a chance to respond to their survey. I thought I’d share with you one of the most surprising responses I had to one of their questions:
5. What is the most important change you would like to see made to improve the laws related to whistleblowing?
I can’t believe I’m saying this, but I think the most important change would be to promote the MSPB AJs from general attorneys to true Administrative Law Judges (ALJ) with the same rights. Additionally, the newly minted ALJ ought to be allowed to form a union, in the same way that SSA ALJ have.
That’s right. I think that Merit Systems Protection Board Administrative Judges, whom are currently not Administrative Judges, but in actuality, Attorney Examiners, should be promoted. Let me clarify: I don’t necessarily think that current judges should be promoted, but I do think that as Attorney Examiners leave through attrition, their positions should be upgraded to full Administrative Law Judges, with the same benefits and tenure of their DOL and SSA peers.
As it currently stands, MSPB AJs are almost always outranked by agency representatives, and they do report to the same employer — the executive branch of Federal Government. This makes it difficult — if not impossible — for them to render an impartial judgment. As mislabeled AJs leave MSPB, their positions should be changed to Administrative Law Judges (ALJ). In addition to being paid more, ALJ have higher standards of proof for removal, and more latitude to make appropriate decisions. I further that these new ALJ ought to be permitted to join unions, just as SSA Administrative ALJ do. Under this proposal, any AJs who wish to compete for the new ALJ positions can. However, they will be competing against others, as the position is now more attractive to both internal and external candidates.
FWIW, I do think there’s at least one — maybe two — current AJs that could rise by virtue of merit. You can reach your own conclusion of what I think about the remainder.
2 users commented in " MSPB Attorney Examiners: Lousy Workers – Let’s Give Them a Promotion "
Follow-up comment rss or Leave a TrackbackYour suggestion is an interesting one. As to your point about ALJs being more “independent” though – to my knowledge SSA ALJ cases are actually handled by GS-level staff attorneys. The ALJs basically sign the decisions, but in many cases, that’s the extent of their involvement. So SSA may not be the best example of better decision-making resulting from more “independent” ALJs.
Also FWIW, MSPJ AJs already have their own union, so I’m not sure I understand that point either.
I am curious about your statement that “MSPB AJs are almost always outranked by agency representatives.” I have not found this to be the case. The majority of MSPB AJs are at the GS-15 level. On the other hand, most staff-level (non-supervisory) attorneys at federal agencies are GS-14 and below. GS-12 and GS-13 is not unusual. You do find a smattering of 15s in agency headquarters (DC), but in the field offices the GS-15 are typically reserved for supervisory attorneys who don’t handle actual cases.
Agency Attorney –
You’ve definitely done your homework. Yes, MSPB AJs do have their own union. However, they’re not ALJ like SSA. True that ordinary grunt attorneys do the work and that SSA ALJ sign off — but that’s true of appointed for life judges as well (and they’re not always willing to buck the power of power either).
I have the numbers on general attorneys at all agencies including MSPB, so I disagree with your point that “attorneys at federal agencies are GS-14 and below”
My point on this however, wasn’t that they were outranked by the agency representatives, but by those they represented. For that matter, agency representatives are just as likely to be outranked by their “clients.”
I appreciate your commentary — we need more open dialogue on how to find the best way to create a system with integrity and which results in a more efficient outcome for taxpayers.
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