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FAIR AND BALANCED? THE STATUS OF PAY AND

BENEFITS FOR NON-ARTICLE III JUDGES

HEARING

BEFORE THE

SUBCOMMITTEE ON THE FEDERAL WORKFORCE

AND AGENCY ORGANIZATION

OF THE

COMMITTEE ON

GOVERNMENT REFORM

HOUSE OF REPRESENTATIVES

ONE HUNDRED NINTH CONGRESS

SECOND SESSION

MAY 16, 2006

Serial No. 109–201

Printed for the use of the Committee on Government Reform

(

Available via the World Wide Web: http://www.gpoaccess.gov/congress/index.html

http://www.house.gov/reform

(II)

COMMITTEE ON GOVERNMENT REFORM

TOM DAVIS, Virginia, Chairman

CHRISTOPHER SHAYS, Connecticut

DAN BURTON, Indiana

ILEANA ROS-LEHTINEN, Florida

JOHN M. MCHUGH, New York

JOHN L. MICA, Florida

GIL GUTKNECHT, Minnesota

MARK E. SOUDER, Indiana

STEVEN C. LATOURETTE, Ohio

TODD RUSSELL PLATTS, Pennsylvania

CHRIS CANNON, Utah

JOHN J. DUNCAN, JR., Tennessee

CANDICE S. MILLER, Michigan

MICHAEL R. TURNER, Ohio

DARRELL E. ISSA, California

JON C. PORTER, Nevada

KENNY MARCHANT, Texas

LYNN A. WESTMORELAND, Georgia

PATRICK T. MCHENRY, North Carolina

CHARLES W. DENT, Pennsylvania

VIRGINIA FOXX, North Carolina

JEAN SCHMIDT, Ohio

——— ———

HENRY A. WAXMAN, California

TOM LANTOS, California

MAJOR R. OWENS, New York

EDOLPHUS TOWNS, New York

PAUL E. KANJORSKI, Pennsylvania

CAROLYN B. MALONEY, New York

ELIJAH E. CUMMINGS, Maryland

DENNIS J. KUCINICH, Ohio

DANNY K. DAVIS, Illinois

WM. LACY CLAY, Missouri

DIANE E. WATSON, California

STEPHEN F. LYNCH, Massachusetts

CHRIS VAN HOLLEN, Maryland

LINDA T. SANCHEZ, California

C.A. DUTCH RUPPERSBERGER, Maryland

BRIAN HIGGINS, New York

ELEANOR HOLMES NORTON, District of

Columbia

———

BERNARD SANDERS, Vermont

(Independent)

DAVID MARIN, Staff Director

LAWRENCE HALLORAN, Deputy Staff Director

TERESA AUSTIN, Chief Clerk

PHIL BARNETT, Minority Chief of Staff/Chief Counsel

SUBCOMMITTEE ON THE FEDERAL WORKFORCE AND AGENCY ORGANIZATION

JON C. PORTER, Nevada, Chairman

JOHN L. MICA, Florida

TOM DAVIS, Virginia

DARRELL E. ISSA, California

KENNY MARCHANT, Texas

PATRICK T. MCHENRY, North Carolina

JEAN SCHMIDT, Ohio

DANNY K. DAVIS, Illinois

MAJOR R. OWENS, New York

ELEANOR HOLMES NORTON, District of

Columbia

ELIJAH E. CUMMINGS, Maryland

CHRIS VAN HOLLEN, Maryland

EX OFFICIO

HENRY A. WAXMAN, CALIFORNIA

RON MARTINSON, Staff Director

SHANNON MEADE, Professional Staff Member

ALEX COOPER, Clerk

MARK STEPHENSON, Minority Professional Staff Member

(III)

C O N T E N T S

Page

Hearing held on May 16, 2006 ............................................................................... 1

Statement of:

Cowan, William, Deputy Chief Administrative Law Judge, Federal Energy Regulatory Commission, and vice president, Federal Administrative Law Judges Conference; Ronald G. Bernoski, Administrative Law

Judge, Social Security Administration, and president, Association of

Administrative Law Judges; R. Anthony McCann, president of the

Board of Contract Appeals Judges Association; and Denise N. Slavin,

president, National Association of Immigration Judges ............................ 20

Bernoski, Ronald G. .................................................................................. 30

Cowan, William ......................................................................................... 20

McCann, R. Anthony ................................................................................. 38

Slavin, Denise N. ....................................................................................... 50

Kichak, Nancy, Associate Director, Division for Strategic Human Resources Policy, Office of Personnel Management ....................................... 5

Letters, statements, etc., submitted for the record by:

Bernoski, Ronald G., Administrative Law Judge, Social Security Administration, and president, Association of Administrative Law Judges, prepared statement of ........................................................................................ 32

Cowan, William, Deputy Chief Administrative Law Judge, Federal Energy Regulatory Commission, and vice president, Federal Administrative Law Judges Conference, prepared statement of ................................. 23

Kichak, Nancy, Associate Director, Division for Strategic Human Resources Policy, Office of Personnel Management, prepared statement

of ..................................................................................................................... 7

McCann, R. Anthony, president of the Board of Contract Appeals Judges

Association, prepared statement of ............................................................. 40

Porter, Hon. Jon C., a Representative in Congress from the State of

Nevada, prepared statement of .................................................................... 3

Slavin, Denise N., president, National Association of Immigration Judges,

prepared statement of ................................................................................... 52

(1)

FAIR AND BALANCED? THE STATUS OF PAY

AND BENEFITS FOR NON-ARTICLE III JUDGES

TUESDAY, MAY 16, 2006

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON FEDERAL WORKFORCE AND AGENCY

ORGANIZATION,

COMMITTEE ON GOVERNMENT REFORM,

Washington, DC.

The subcommittee met, pursuant to notice, at 2 p.m., in room

2247, Rayburn House Office Building, Hon. Jon C. Porter (chairman of the subcommittee) presiding.

Present: Representatives Porter, Davis, Issa and Cummings.

Staff present: Ron Martinson, staff director; Chad Bungard, deputy staff director; Shannon Meade, professional staff member; Patrick Jennings, senior counsel; Alex Cooper, legislative assistant;

Mark Stephenson, minority professional staff member; and Teresa

Coufal, minority assistant clerk.

Mr. PORTER. Good afternoon, everyone. I would like to bring the

meeting to order. Can you hear me OK?

I would like to bring the meeting to order, and I would like to

thank you all for joining us today.

The role that judges play in holding our society together is extremely important and often underestimated. Today’s hearing is:

Fair and Balanced? The Status of Pay and Benefits for Non-Article

III Judges. We rely on judges serving in courts of law or administrative tribunals to peacefully resolve our disputes in an independent manner and according to the rule of law.

When most people think of a Federal judge, the first thing that

probably comes to their mind is the type of judge in a court of law

under Article III of the Constitution. However, what many people

fail to realize is that there is another group of Federal judges serving critical functions in the courts created outside of Article III and

outside of the judicial branch. Today, we will be examining the recruitment and retention of judges in the executive branch. These

judges decide the cases which affect the functioning of the government and the everyday lives of people across the country, handling

such cases involving interpretation of complex regulatory issues,

Social Security disability appeals, and deportation and immigration

cases. Nothing could be more important to the litigants before

these tribunals than the right to due process and a fair hearing.

The role of a judge in the executive branch is not easy. That is why

it is important to not only recruit the best and the brightest lawyers to execute these judicial duties, but to retain them.

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I look forward to delving into the issues pertaining to the recruitment and retention of these judges, including pay compression, the

utility of adjusting judicial pay based on performance, the Office of

Personnel Management’s management of the Administrative Law

Judge [ALJ] Program and retirement benefits provided to the

ALJs.

There are over 1,400 ALJs across the government responsible for

hearing disputes over their agencies’ decisions. Most of them work

at the Social Security Administration, where they make judgments

on citizen appeals. There are also a number of Administrative

Judges [AJs], serving as immigration judges and Board of Contract

Appeals judges. We will hear from their representative associations

today.

I would like to thank our witnesses for being here, and I look forward to the discussion.

Now we are going to move right into procedural matters. It is

customary to have all witnesses take the oath before their testimony. So please stand.

Honorable Bill Cowan, please, are you here?

Judge COWAN. Here.

Mr. PORTER. Honorable Bernoski.

Judge BERNOSKI. Mr. Chairman, yes, sir.

Mr. PORTER. Anthony McCann.

Judge MCCANN. Here.

Mr. PORTER. And Denise Slavin.

Judge SLAVIN. Here.

Mr. PORTER. And, of course, Nancy is with us today.

Thank you very much. If you would please all raise your right

hands.

[witnesses sworn.]

Mr. PORTER. Let the record reflect the witnesses have answered

in the affirmative. Please be seated.

I ask that each of you remember your testimony will be approximately 5 minutes, and any further statements you wish to make

will be included in the record. We will have Members that will be

coming today, actually, coming and going. There is a funeral that

is happening in Mississippi, so we are not going to have our normal

Members here. But, just so you know, Members may come and go.

So understand that is how the process works.

Also note that Mr. Issa is here, and we now have a quorum.

[The prepared statement of Hon. Jon C. Porter follows:]

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Mr. PORTER. We will begin, Nancy Kichak, with your presentation. You are the Associate Director for the Division for Strategic

Human Resources Policy for the Office of Personnel Management.

Thank you for being here.

STATEMENT OF NANCY KICHAK, ASSOCIATE DIRECTOR, DIVISION FOR STRATEGIC HUMAN RESOURCES POLICY, OFFICE

OF PERSONNEL MANAGEMENT

Ms. KICHAK. You’re welcome.

Mr. Chairman, members of the subcommittee, thank you for this

opportunity to discuss human resources management of Federal

administrative law judges and to respond to calls for changes in

their pay and retirement benefits. For the past 60 years, ALJs

have provided a vital service in the administration of Federal programs. We are committed to ensuring the agencies can continue to

recruit and retain a high caliber of personnel while respecting ALJ

independence.

The Administrative Procedure Act created the position of ALJ,

originally called hearing examiner, to ensure due process in Federal agency rulemaking and provide aggrieved parties an opportunity for a formal hearing on the record before an impartial hearing officer. It also provides for a merit system of selection administered by the Office of Personnel Management and the statutory

protection of the ALJ’s decisional independence from undue agency

influence.

In order to assure the requirements for a merit selection system

is met, OPM administers the ALJ examination and maintains a

register of qualified candidates. Currently, the exam is closed while

OPM is working to update the exam to include abilities identified

by ALJs as necessary to perform their work.

Recently, we have filled 140 positions with qualified candidates

from the existing register, demonstrating there is no recruitment

problem for this profession. When the new exam is completed, applicants will use state-of-the-art technology to apply online.

Until recently, members of the SES and ALJs have had access

to the same pay cap. However, Congress enacted legislation in late

2003 that gave SES access to higher pay, provided they are covered

by performance appraisal systems that are certified by OPM and

OMB. Understandably, ALJs would like access to the increased

level of pay. However, they fail to credit the additional requirements placed on members of the SES.

At this time pay levels of ALJs are not creating a retention problem. A total of only 12 ALJs have resigned over the last 4 years.

There is no similarity in responsibilities or qualifications of ALJs

and SES indicating their pay should be directly linked. A more appropriate comparison is to employees in like positions with similar

duties and responsibilities.

For example, judges of the Supreme Court, U.S. Court of Appeals

and U.S. District Court indeed have higher pay than for ALJs.

However, bankruptcy judges and magistrates earn less than the

cap salary of ALJs.

This administration believes that higher pay levels must be justified by the scope of duties and coverage by a performance manageVerDate 11-MAY-2000 12:29 Dec 15, 2006 Jkt 000000 PO 00000 Frm 00009 Fmt 6633 Sfmt 6633 D:\DOCS\30900.TXT HGOVREF1 PsN: HGOVREF1
6

ment system that is designed to maintain the independence of the

administrative judiciary.

Groups representing ALJs have suggested that OPM establish a

special office to deal with ALJ issues. Director Springer is personally committed to seeing that ALJ issues are appropriately addressed. OPM’s General Counsel has been serving as the initial

contact for ALJ issues, with support from additional OPM staff. If

at any time the Director determines this arrangement is not effective, she will make other arrangements.

The Administrative Law Judges Retirement Act of 2005, introduced by Representative Wynn, liberalizes eligibility requirements

for retirement while increasing the annuity computations. Other

special retirement programs with enhanced benefits such as for law

enforcement officers and firefighters are based upon the human

capital management issues resulting from the physical demands of

the specific position.

ALJs retire on average at age 70 with 32 years of service, demonstrating an ability to work a full career. Thus, we believe that

the existing retirement provisions applicable to ALJs are appropriate.

We are committed to ensuring the Federal Government can continue to recruit and retain the high caliber of personnel it has come

to expect in ALJ positions. We are improving the recruitment process. But we believe current pay and retirement provisions are enabling the Federal Government to recruit and retain a high quality

ALJ work force.

This concludes my statement. I would be glad to take any questions.

Mr. PORTER. Thank you very much. We appreciate the testimony.

[The prepared statement of Ms. Kichak follows:]

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Mr. PORTER. Chairman Davis.

Mr. DAVIS. Thank you, Mr. Chairman.

Thank you for your testimony.

Unfortunately, I have to get over to the floor where I have to

manage a couple of bills on behalf of the committee, but I want to

take the opportunity to wish Chairman Porter a happy birthday.

Mr. PORTER. Twenty-one.

Mr. DAVIS. Times a factor.

But I am not going to say how old he is, but I will say that I

think the Las Vegas climate is preserving him well, and I appreciate his leadership on this subcommittee and his friendship.

I want to thank OPM and the representatives and the judges for

appearing here today. How we recruit, we retain and pay non-Article III judges and ALJs is an important issue that deserves careful,

careful consideration.

These judges decide disputes that cross a range of subjects from

Social Security disability cases to cases involving complex questions

about regulatory tax and immigration law. All of these are, generally speaking, administrative cases which are not as visible as

the headline court cases. Decisions of the judges involved are of

critical importance to the litigants, the individuals seeking disability benefits or the person who is in a tax dispute with the IRS; and

because of the critical importance of these cases it is important

that the government provides a competitive salary and a competitive benefits package to recruit and to retain the judges that decide

them.

The structure of pay and benefits for non-Article III judges and,

more specifically, ALJs is very different from what it once was.

But, as the 20th century philosopher Yogi Berra once said, ‘‘the future ain’t what it used to be.’’ Today’s ALJs are increasingly facing

pay compression. This means that many ALJs are being paid in a

narrow range at or near the pay cap for their occupation.

This seems to be a persistent issue. I am looking forward to

learning more about the issue and trying to resolve it. Once again,

I want to thank you for coming today to help us understand the

issues facing the non-Article III judges; and I appreciate it very

much.

I know the committee staff has a lot of questions, Mr. Chairman.

I will move through you, but I want to just be here, show my support for what you’re doing and hope we can move to some kind of

a resolution.

Mr. PORTER. Thank you, Mr. Chairman. I appreciate your being

here and your questions and your comments.

I do have a couple of questions regarding OPM. Does OPM agree

that a very large number of judges are at or near the total pay cap?

Ms. KICHAK. Yes, we do.

Mr. PORTER. And if that is the case, does OPM consider that to

be a problem?

Ms. KICHAK. OPM does not consider that to be a problem. Pay

caps—whenever there is a pay cap, folks cluster at that pay cap.

That’s true when you set the pay caps for SES. When you have a

pay cap for ALJs, they cluster there. In our general schedule, folks

cluster at the step 10. In other words, particularly with ALJs that

work long careers, eventually they work through the ALJ pay

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range and they get to the top; and whatever that cap is, that is

where they are.

Mr. PORTER. Does the compression cause a recruitment or retention problem?

Ms. KICHAK. It does not. We have been able to fill every position

that has been presented to us from the existing register.

We are getting ready to introduce a new exam fairly soon. We

have had a lot of interest exhibited through calls and comments in

that exam.

We think that the newest register will offer the wealth of candidates that the existing register does.

Mr. PORTER. In your opening comment, you mentioned there is

approximately 1,400 or so ALJs, right——

Ms. KICHAK. Right.

Mr. PORTER [continuing]. In 26 departments and agencies. But

there has only been 12 that have retired in 4 years, is that correct?

Ms. KICHAK. Twelve who have resigned. There have been more

retirements.

Mr. PORTER. And it may have been in your testimony or in your

backup, but do you recall why the 12 have resigned?

Ms. KICHAK. No, our records don’t show that.

Mr. PORTER. The specific reason?

Ms. KICHAK. The 12 resignations out of 1,400 folks is not a huge

number.

Mr. PORTER. What would you say the average is for resignations

in the Federal employee?

Ms. KICHAK. I think we have what we call a turnover rate of

around 6 percent in the Federal Government. So 6 percent of 1,400

would be more than——

Mr. PORTER. Six percent a year.

Ms. KICHAK. That’s right; and the number I quoted you was 12

over 4 years, or 4 per year—3 per year.

Mr. PORTER. As far as your testimony, you stated that higher pay

levels for ALJs must be accompanied by the development of robust

performance management systems; and you cite the Office of Inspector General as an example of OPM having substantial experience with performance appraisals and organizations that have responsibility for independent review of agency actions. Let’s face it.

Judicial functions are much different from that of the IG, is that

correct?

Ms. KICHAK. Right.

Mr. PORTER. What experience does OPM have with performance

appraisals for executive branch judges or hearing examiners?

Ms. KICHAK. We do not have experience with that. This is a new

area for us. But we think our experience with Inspector Generals

is important. Yes, their actual jobs are different, but Inspector Generals pride themselves on their independence also. And yet, in their

structure, which is like the ALJ structure where you have offices

with senior Inspector Generals and then you have staff, they have

been able to develop performance appraisal systems where they

are—their performance is evaluated by independent folks, not by

the agency head.

We think that opportunity exists in the ALJ community, because

most ALJs are in offices where the ALJ is not the sole—is not by

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themselves. They are in a management structure in which there

can be performance oversight by other ALJs and maintain the

independence.

Mr. PORTER. The OPM’s position is that ALJs should receive no

pay compression relief unless such a pay increase was accompanied

by a robust performance management system. Is that correct?

Ms. KICHAK. We think the robust performance management system is critical, yes.

Mr. PORTER. And what are OPM’s special plans to revitalize the

ALJ register?

Ms. KICHAK. We have proposed regulations and we have proposed new qualification standards. Those proposals were open for

60 days of public comment. We are in the process of reviewing

those comments now, and we are in the process of modernizing the

exam and taking account of things we have learned from the ALJ

community that—about things that are important to examine candidates on.

So as soon as we are done reviewing and commenting—reviewing

those comments, we will announce the final—the regulations and

procedures, we will open a new exam and develop a new register.

Mr. PORTER. I think that is it for today. There will be additional

written questions for followup, and we appreciate your testimony.

Ms. KICHAK. Thank you. We will be glad to answer them. Thank

you so much.

Mr. PORTER. Also note that all Members will have 5 legislative

days to submit written statements and questions for the hearing

record. Answers to written questions provided by the witnesses also

will be included in the record.

I also acknowledge all other materials referred to by Members

and the witnesses may be included in the hearing record. All Members will be permitted to revise and extend their remarks.

I would like now to welcome our second panel. We will hear from

the Honorable William Cowan, the Honorable Ronald Bernoski, the

Honorable Anthony McCann and the Honorable Denise Slavin.

Let’s begin with Judge Cowan, who is the Deputy Chief Administrative Law Judge with the Federal Energy Regulatory Commission and is vice president for the Federal Administrative Law

Judges Conference. Welcome, Judge.

STATEMENTS OF WILLIAM COWAN, DEPUTY CHIEF ADMINISTRATIVE LAW JUDGE, FEDERAL ENERGY REGULATORY

COMMISSION, AND VICE PRESIDENT, FEDERAL ADMINISTRATIVE LAW JUDGES CONFERENCE; RONALD G. BERNOSKI,

ADMINISTRATIVE LAW JUDGE, SOCIAL SECURITY ADMINISTRATION, AND PRESIDENT, ASSOCIATION OF ADMINISTRATIVE LAW JUDGES; R. ANTHONY McCANN, PRESIDENT OF

THE BOARD OF CONTRACT APPEALS JUDGES ASSOCIATION;

AND DENISE N. SLAVIN, PRESIDENT, NATIONAL ASSOCIATION OF IMMIGRATION JUDGES

STATEMENT OF WILLIAM COWAN

Judge COWAN. Thank you very much, Mr. Chairman and honorable members of the committee, members of the staff. On behalf of

the Federal Administrative Law Judge community, I thank you for

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this opportunity to discuss a very significant issue for us and that

is compression of the pay schedule for the corps of administrative

law judges.

I have been a U.S. Administrative Law Judge for a little over 9

years, and I live in northern Virginia.

Sixty years ago, the Congress enacted the Administrative Procedure Act, which provided for the independent adjudication of agency administrative hearings by presiding officers who later became

known as Administrative Law Judges. To serve in this function

well, the ALJs must be chosen from the best legal minds the Federal Government and the private bar have to offer. The Federal

Government and the American people have a great stake in the

process.

Unfortunately, over the past few years, ALJ compensation has

not kept pace with traditional milestones, resulting in compression

of the pay schedule that actually threatens to weaken the administrative adjudicatory process.

Pay compression, as has been discussed previously today, results

from a statutory limitation of the pay grade. Last year, as a result

of this compression, most ALJs received only a 1.9 percent increase, while most of the Federal work force received a 3.44 percent

increase, including locality pay.

Most ALJs at level AL–3F, AL–2 and AL–1 now receive exactly

the same rate of pay, so there is no recognition through compensation for greater experience, length of service, management responsibilities. Nor is there any financial incentive for a judge to take

on the administrative responsibilities of a Chief Judge or Deputy

Chief Judge.

While this is unfair to sitting ALJs, we are also very concerned

that continuing pay compression will dilute the quality of ALJ applicants and make the position unattractive to senior agency counsel or SES attorneys that historically formed the natural candidate

base for ALJ positions. They are no longer interested. A GS–15

step 10 senior attorney, for example, already makes 25 percent

more than a starting ALJ.

There was a lot of talk earlier today about everybody being at a

relatively healthy level of pay. The missing ingredient there was

the $95,000 starting salary for ALJs. It is simply not competitive

in this day and age.

Agencies deserve to have the best and the brightest ALJs to adjudicate the important cases that they get from their agencies. Pay

dilution will beget quality dilution. You get what you pay for. If

this problem continues, the ALJ program will end up bottom feeding from a pool of marginal perspective candidates instead of attracting the best and brightest individuals.

I know the chairman of my agency wrote to the President a number of years ago complaining about the quality of the applicant

pool. The situation has gotten even worse since then.

Now OPM recognizes the problem but has linked consideration

of a remedy to establishment of a pay-for-performance regime.

However, the APA itself and OPM’s own regulations prohibit grading of the performance of ALJs and with good reason. ALJ’s need

judicial independence to protect the integrity and the legitimacy of

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the agency hearing process and the rights of claimants and litigants in agency cases.

OPM seems not to understand the very fundamental principle

that an agency rating and rewards system for ALJs would be inconsistent with a preservation of an independent administrative judiciary and, more important, even the perception of objectivity and

fairness that is so important to claimants and litigants. OPM has

not suggested to us to date how its policy preferences can be reconciled with the need to maintain judicial independence, which is

the hallmark of a fair and balanced process.

We have communicated our thoughts to OPM as to some concepts and existing programs that might help bridge this gap. At

bottom, however, we don’t believe that relief from the very important pay compression issue needs to be delayed until a way can be

found to satisfy OPM’s performance policy objectives. Pay compression is a problem that needs attention now.

Thank you for this opportunity. That concludes my prepared remarks.

Mr. PORTER. Thank you, Judge.

[The prepared statement of Judge Cowan follows:]

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Mr. PORTER. Next, we have Judge Bernoski, Administrative Law

Judge, from the Social Security Administration, and president of

the Association of Administrative Law Judges. Welcome.

STATEMENT OF RONALD G. BERNOSKI

Judge BERNOSKI. Thank you. Thank you, Mr. Chairman, and

thank you for inviting us to testify here today.

I have been an Administrative Law Judge with the Social Security Administration for over 25 years. But, as you indicate, I appear here as a witness as president of the Association of Administrative Law Judges. We represent about 1,100 Administrative Law

Judges in the Social Security Administration and in the Department of Health and Human Services.

As indicated previously, there are about 1,400 Administrative

Law Judges in the Federal Government. However, I make the

statement today on behalf of all Federal Administrative Law

Judges. We appear in support of the Administrative Law Judges

Retirement Act of 2005, which is pending before this committee as

H.R. 1864. This legislation addresses the present inequity for Administrative Law Judges and provides a retirement benefit similar

to other judicial officers in both the State and Federal Governments. This legislation is not complex, and it is patterned after existing Federal pension law.

All Administrative Law Judges will receive the same pension enhancement as currently received by Federal law enforcement officers, congressional staff, and some Article I judicial groups. The

pension annuity for Civil Service Retirement System pension beneficiaries will be enhanced from the current 2 percent to 2.5 percent,

and the Federal Employees Retirement System [FERS] beneficiaries annuitants will be enhanced from the current 1 percent to

1.7 percent. In exchange, Administrative Law Judges will pay an

additional 1 percent individual contribution for this pension benefit.

The enhanced pension only applies to the years that the individual serves as an Administrative Law Judge in the Federal Government.

This is low-cost legislation; and, on a similar bill, in 2003, the

Congressional Budget Office estimated a 10-year direct cost of $14

million, or an average of $1.4 million per year.

The legislation will also provide a short-term reduction in the

budgets of some agencies. This savings will occur because older

judges who are paid at a higher rate will retire and be replaced by

judges who are entering the system at the lower pay scales, thereby resulting in a cost savings for the agencies.

This legislation is needed because Administrative Law Judges

enter the government later in their professional career. This is particularly common for Administrative Law Judges who enter the

Federal Government from the private practice of law. It is not uncommon for an attorney to become an Administrative Law Judge

at age 50 or older. Because of the qualifying requirement of trial

practice or legal experience which enables an Administrative Law

Judge to start hearing cases completely, there is no extensive training period. For example, in the last class at Social Security, the average age of the judges was 56 years. This means that these judges

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must work until age 80 years or older to earn a Federal pension

based on the governmentwide average of 30 years of service.

Now, many States have recognized that judicial officers should

have enhanced pensions. For example, in the State of Nevada, the

State provides a pension at age 60 at 75 percent of the last year’s

judicial salary; and the State of Illinois provides a pension for 85

percent of salary after 20 years at age 60.

Administrative Law Judges should receive a fair pension for the

same reason that other judicial employees receive a fair pension,

and that is to attract highly qualified attorneys to the position of

Federal Administrative Law Judge.

In closing, Mr. Chairman, the Federal Administrative Law

Judges Retirement Act of 2005 provides this remedy. It will permit

Administrative Law Judges to retire before they reach mid-80’s and

create a younger, more efficient corps of Administrative Law

Judges.

As indicated previously, this bill is low cost and will result in

short-term savings for some agencies. Therefore, Mr. Chairman, we

ask for your support for this legislation.

Thank you.

Mr. PORTER. Thank you, Judge.

I appreciate two of your comments, one, that you brought up Nevada, which is always a good thing, and the 50 and older, so I fit

into that group.

I do appreciate your testimony.

Judge BERNOSKI. On behalf of all Administrative Law Judges, we

wish you happy birthday.

Mr. PORTER. Thank you, and we should be celebrating in Las

Vegas right now.

Judge BERNOSKI. That is exactly correct.

[The prepared statement of Judge Bernoski follows:]

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Mr. PORTER. Judge McCann is president of the Board of Contract

Appeals Judges Association. Judge.

STATEMENT OF R. ANTHONY McCANN

Judge MCCANN. Thank you. Thank you, Mr. Chairman. Good

afternoon and thank you very much for this opportunity to appear

before you.

Mr. PORTER. Excuse me, Judge. We won’t hold Bill against you,

because I see he is here today.

Bill Bransford—we won’t hold Bill against you.

Judge MCCANN. We appreciate that very much. We try to keep

him under control.

I am president of the Board of Contract Appeals Judges Association; and one of the purposes of the Board of Contract Appeals

Judges Association is to provide appropriate means of communication between BCA judges and Congress, the judiciary, bar associations, etc.

I am familiar with the concerns of my Federal judges, and I

know that I speak for most of them.

The Boards of Contract Appeals are independent quasi-judicial

tribunals authorized by Congress and established by agencies to

issue binding decisions resolving contract disputes. Congress provided that the Boards of Contract Appeals judges would not be subject to direction or control by procuring agencies. Our decisions are

final agency decisions not reviewable by the agency and appealable

only to the Court of Appeals for the Federal Circuit, much as the

decisions of the Court of Federal Claims are.

In this respect, we are quite different from Administrative Law

Judges. Our primary responsibility is to issue fair and independent

decisions. It is from this perspective that I approach the issue of

the pay-for-performance issue.

Pay for performance provides compensation based on individual

performance or contribution to agency performance. Pay for performance would necessarily affect the process of arriving at, the

quality of, the timeliness of, or the outcome of decisions. It would,

in fact, diminish or possibly eliminate a judge’s independence and

his impartiality. Certainly it would create doubt in the government

contract community as to judges’ impartiality and independence.

Contractors may well hesitate before they bring appeals to the

Boards of Contract Appeals. This could have a significant impact

on Boards of Contract Appeals and could even impact on a court

of claims.

Pay for performance is simply inconsistent with the judge’s primary responsibility to issue fair and independent decisions, and my

attachment goes into this issue in more detail.

With regard to pay, the Contract Disputes Act of 1978 established BCA judges pay at grade levels of GS–16, 17 and 18, the socalled super grade levels, the precursors to the Senior Executive

Service. The Federal Employees Comparability Act of 1990, again,

Congress set Boards of Contract Appeal judges pay at levels comparable to that of the SES.

BCA judges perform work at levels comparable to the Court of

Federal Claims. Contractors can appeal their cases either to the

Boards of Contract Appeals or to the Court of Federal Claims, and

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the relief granted by each of these tribunals is exactly the same.

The Court of Federal Claims judges are paid at Executive Level 2,

the pay cap for the SES. We believe that BCA judges should be restored to the pay levels comparable to the SES and Court of Federal Claims judges.

BCAs need to be fully competitive when filling vacancies. If the

SES is paid more, candidates are more likely to opt for the SES.

The SES already has a competitive advantage. They can receive bonuses, where BCA judges may not receive bonuses for the very reason that they must remain independent.

To keep the rates relatively comparable to the SES, BCA pay

rates we feel should be set at a percentage of Executive Level 3,

instead of Executive Level 4; and the locality pay cap should be set

at executive pay level 2 instead of level 3. BCAs have separate significant pay compression over the past 15 years in relation to the

general schedule. After the Pay Comparability Act of 1990, GS–15

step 10 received 74 percent of the pay of the BCA judge. Today,

they receive 92 percent of the pay of the BCA judge. Soon there

may be little, if any, monetary reason for a GS–15 to aspire to become a BCA judge.

If the trend continues, the only way a GS–16 could increase his

pay is to move to the SES. The relative diminution of pay is inappropriate, we feel, and should be rectified.

Thank you for the opportunity to appear before you.

Mr. PORTER. Thank you very much, Judge. We appreciate your

testimony.

[The prepared statement of Judge McCann follows:]

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Mr. PORTER. Finally, we have Judge Slavin, who is the president

of the National Association of Immigration Judges.

STATEMENT OF DENISE N. SLAVIN

Judge SLAVIN. Good afternoon and happy birthday, Mr. Chairman; good afternoon to the committee members. Thank you for inviting the National Association of Immigration Judges to testify

today.

The National Association of Immigration Judges is an association

of immigration judges in the certified collective bargaining unit for

these judges Nationwide. There is about 200 of us Nationwide. We

have been reaching out to lawmakers grappling with this topic for

the last few years. Pay compression has been an increasing problem in the ranks of the Immigration Judge Corps for some time.

The unique position of immigration judges frequently has been

overlooked because we comprise a relatively small body of specialized administrative judges within the Department of Justice. Immigration Court proceedings are a strange hybrid of administrative

civil and criminal law. While we are technically an administrative

tribunal, we are not governed by the Administrative Procedures

Act. However, we comprise one of the bigger groups of administrative judges within the Federal bureaucracy.

Unlike ALJs, we generally render final agency decisions, not

mere recommendations. The vast number of our cases are not appealed. The subject matter we address daily can have life-or-death

impact on the parties before us, whether it is in the context of asylum claims in the United States or whether someone’s removal

would cause exceptional and extremely unusual hardship to a U.S.

citizen’s relative.

More recently, cases have raised significant national security

issues and assertions of connections to international terrorism or

persecution of others. Further, the increased spotlight on immigration issues and IJ decisions has been brought on by streamlining,

a process where the Board of Immigration Appeals adopts IJ decisions as the final agency decisions, and this highlights the need for

a seasoned and stable corps of immigration judges.

We have similar problems to ALJs because of pay compression.

These include the serious problems of attrition in the ranks and

salaries disproportionate to those of the attorneys and parties who

appear before us. Our ranks have been more directly affected by

pay compression in recent years because, increasingly, the department has not been able to fill positions as IJs leave, creating a burden on the system and sitting IJs. The increased focus on immigration issues in the press only highlights the need to recruit and retain a high caliber of candidate for the system.

The immigration judge pay schedule is based on four levels of

pay, based on increasing years of experience. However, in the third

of the cities in which the immigration judges sit, the pay levels for

the two highest positions are the same due to pay compression. At

present, over 100 judges, about half of our corps, are paid identical

salaries because of the pay cap provisions which limit the amount

of locality augmentation that we can receive.

One thing that someone hasn’t mentioned is that pay compression is aggravated by the fact that, for the same reason we are exVerDate 11-MAY-2000 12:29 Dec 15, 2006 Jkt 000000 PO 00000 Frm 00054 Fmt 6633 Sfmt 6633 D:\DOCS\30900.TXT HGOVREF1 PsN: HGOVREF1
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empted from performance reviews, we cannot receive other types of

Federal compensation, such as bonuses or awards. These types of

compensations usually are used to augment the salaries of highlevel SES or executive schedule employees. Historically, immigration judges have been exempted from the general Federal Employment Performance Review System by OPM in recognition of the

quasi-judicial nature of the job and the need for both real and perceived decisional independence.

The NAIJ would be happy to work with the subcommittee to

change the pay scale, but we cannot envision a system that would

link pay to performance and still preserve public confidence. A new

pay system cannot include a pay for performance model. Judicial

independence is paramount to ensure that we maintain public confidence and neutrality and fairness of our tribunal, and the mere

appearance that quantity based measures are applied are worse

yet. Financially rewarding would severely undermine that confidence.

Indeed, many immigration judges believe that the isolated

incidences of immigration judge intemperance that have been occasionally criticized by the press have been brought on by the Department of Justice’s position of case performance goals. These goals

have dictated rigid guidelines for the immigration judges for the

timeframe of completion of cases based on the type or age of the

case. With added emphasis in the last years on these goals, we do

not have the time in court to exchange pleasantries or allow an applicant to take all the time they desire for their day in court, and

this sometimes makes us appear abrupt or curt in order to move

cases along.

It is not difficult to see how this pressure to expeditiously move

cases through the system might be misconstrued and misinterpreted as a lack of courtesy by the parties. Yet it is the same press

of cases which highlights the need for expert and experienced IJs

and serves to underscore the crucial importance of maintaining a

top-quality corps of seasoned IJs by addressing pay compression

and inequities relative to private sector employment.

The important independent goal of IJs in post September 11th

times and the pay compression from which we suffer demands that

all positions be addressed in a manner similar to any proposal for

ALJs or non-Article III judges. The statutory language must be

clear to ensure the pay scale for IJs is appropriately modernized,

the compression is alleviated, and it would be clearly protected

from any link to performance based criteria.

Thank you very much for the opportunity to speak today.

Mr. PORTER. Thank you, Judge. We appreciate your testimony.

[The prepared statement of Judge Slavin follows:]

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Mr. PORTER. I guess we will start with you, with a couple of

questions.

In light of the President’s new proposal, at least concepts, yesterday, do you see your workload increasing substantially with some

of the proposals that have been brought forward?

Judge SLAVIN. I see our workload increasing in two ways. One

of the ways it makes our workload more difficult is immigration

law is constantly changing so it is very difficult to keep up with

those changes and to apply the new complexities. Just as case law

develops on statutes that are passed, new statutes are passed or

they are amended; and this makes these novel issues basically appear in court almost all the time. It is hard to determine whether

this would be an initial increase in cases before the Immigration

Court, and especially until some actual language comes out of any

compromise that would be developed it would be difficult to determine.

Mr. PORTER. Before I continue with questions, I would like to ask

my colleague, Mr. Cummings, if he would like to make any comments or an opening statement.

Mr. CUMMINGS. No, you can proceed Mr. Chairman.

Mr. PORTER. Thank you.

You had mentioned also, Judge, that the pay of immigration

judges should be linked to the salaries of bankruptcy judges or

magistrate judges. How are these judges paid, and why is that the

best comparison?

Judge SLAVIN. Well, it is interesting I did agree with Ms. Kichak

on this issue. They are paid on a percentage of the pay of the Federal court judges. I think her comparison to State court judges is

totally inappropriate. It is like comparing apples and oranges. If

you compared, for example, the salaries of Federal attorneys to

State attorneys, you would see a similar discrepancy. But I think

we should be paid comparably to magistrate judges and bankruptcy

judges.

I would note, however, that those judges and the Federal court

judges are also pressing for an increase in pay and feel that their

current system is out of date.

When I looked at this issue last year, the Senate bill that was

proposed would have proposed a maximum of $166,000 for the

magistrate or bankruptcy judges; and if you linked, for example,

the immigration judge pay at 95 percent of that, it would have

brought our pay up to $157,000. So I think that the type of work

we do is more similar to that than the work done by management

employees or senior level management employees.

Mr. PORTER. It is becoming more and more obvious that we have

a lot of our senior government officials in different areas where—

their pay benefits and retirement situations—we need to be reviewing a lot of folks that are in the senior level, and possibly by an

independent commission at some point.

But, again, I appreciate your comments in answering my questions.

Judge McCann, in your view, are there any pay-for-performance

principles that will be applied to preserve your independence and

improve the quality of timeliness?

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Judge MCCANN. Mr. Chairman, I don’t see any way to have a

performance pay or any standards that can be used that would in

fact preserve our independence or our impartiality. We thought

about this long and hard and actually tried to but have not been

able to come up with something that would preserve our impartiality.

Mr. PORTER. And, Judge Bernoski, how many ALJs retire each

year and how many separate without retiring? Do you do any exit

polling discussion with these folks?

Judge BERNOSKI. Off the top of my head, Mr. Chairman, I cannot

give you an answer to that. I can supplement my testimony and try

to provide that information to you.

But I think that probably in the Social Security Administration—

this is probably a guess—we probably would have about—we have

1,100 judges, probably around 30 retire a year. I think that is a

good ballpark estimate, about 30 a year.

Mr. PORTER. And if you could check that for us, I would appreciate it.

Judge BERNOSKI. Yes, sir I will.

Mr. PORTER. Judge Bernoski, do you see a significant loss of experienced and talented judges in the near midterm if we don’t address these pay concerns; and, if so, what will happen.

Judge COWAN. Do we anticipate a loss of judges because of the

pay problem? I think it is a complicated question. The fact is that

the existing corps of judges came in late in their careers, typically,

to Administrative Law Judge positions. They typically need to stay

in largely because they can’t afford to retire, and I think that links

into Judge Bernoski’s testimony about the need for retirement programs. So you are not going to see a lot of midterm people going

in and out. There are some, but not a lot.

Mr. PORTER. And you need to help me because I don’t know the

answer to this question. You take a—like a State employee judge

in the State of Nevada, who may well be a part of the public employees retirement system in Nevada, and what you are saying is

they may be there for 10, 15 years and then, at later in life, with

that experience, then they become a Federal judge. And they are

not able to combine their benefits. So they have to stay longer to

make sure that they can maximize the retirement benefits.

Judge COWAN. That is exactly right. I am an example of that. I

am a retiree in the State of New York. That pension plus the Federal pension is not nearly as good as a typical long-term Federal

pension.

So that is why people in ALJ positions stay in them. They need

to stay in them to continue to get the number of years to boost up

the FERS benefit, basically.

Mr. PORTER. So where is it that they start in salary, approximately?

Judge BERNOSKI. $95,500 I believe is the existing starting pay for

ALJs.

Mr. PORTER. To start, you have to have experience for a number

of years. It is not like they are coming in fresh from college in their

first job?

Judge COWAN. No. OPM has an examination. Last examination

required 7 years of trial experience or similar experience and a

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number of other qualifications that you wouldn’t get right out of

law school, for example. So you are dealing with a seasoned corps

of people. Typically the kind of people that came into ALJ positions

were senior-level government employees at the GS–15 level that

my colleague was talking about earlier and I mentioned as well.

We are not getting those transfers anymore because it is just not

lucrative for them. They can make more money staying where they

are. That is what our concern is.

There is always going to be applicants for a job that pays $95,000

a year. The question is, are you getting the right kind of people?

And we think that these programs need the best and the brightest

people.

Mr. PORTER. Thank you. That actually concludes my questions.

Mr. Cummings, anything you would like to ask?

Mr. CUMMINGS. Yes. What is the retirement age for judges—I

guess it is different—on different levels it is different retirement

ages. In the State of Maryland, you have to retire by 70. But when

do you all have to? Do you have a time that you have to retire?

Judge BERNOSKI. No, there is no mandatory retirement age, Mr.

Cummings, in the Federal Government.

Most judges, Administrative Law Judges, that is, retire between

after 20 years of service and then usually around 30 or more, depending on what their age is at that time. We have—I was over

in Oklahoma City a couple of weeks ago and in that office there

in the Oklahoma City hearing office of about 13 judges I think

there were 3 that are over 80 years old. One was 85 or 86 years

old. So these people are working well into older age and probably,

quite frankly, beyond the scope of productivity.

Mr. CUMMINGS. The reason why I ask that question is because

there was some mention of judges having to work longer because

of certain circumstances with regard to pay, I guess, and pensions.

So I assume that part of the reason why some may work a little

longer than, say, the average is because of pay, is that it, or the

retirement packages?

Judge BERNOSKI. Well, the typical reason why judges work older

is because, well, first of all, as Judge Cowan indicated, their FERS

system is really inadequate for the salary level of Administrative

Law Judges the way the pension is structured, but second is because they enter Federal service at much later age. Like, for instance, the last class of Social Security judges of about a year ago,

the average age of those judges was a little over 56 years.

So if you are going to take a governmentwide pension of 30 years

on top of 56, you have 85 years of age before they would receive

their 30 years of Federal service. And that is typically what happens. Our people enter into government service probably closer—

OPM statement said age 40, but I think that is a little bit young.

I would say our judges are a little bit closer to 50 years old when

they enter. We have some younger people, but most of them are on

the older side, 50 years or more.

Mr. CUMMINGS. Judge McCann, you had said that—in answering

one of the chairman’s questions about pay for performance, you

said that—you mentioned that it might be harmful to impartiality.

Is that what you said?

Judge MCCANN. Yes, I did.

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Mr. CUMMINGS. Can you explain that to me? I am sorry I missed

you all earlier.

Judge MCCANN. Absolutely, Congressman Cummings.

If you have pay for performance, you would have to have certain

standards for pay for performance. And that would—if you have

standards for pay for performance that are at all subjective, that

would be opening up that performance review to political pressure

or pressure by the agency to come to some conclusion. It would not

be impartial.

If you had absolutely objective standards, you could have pay for

performance. But we know of no objective standards that would

possibly apply. So any type of—we come to the conclusion that any

type of pay for performance necessarily destroys impartiality.

Mr. CUMMINGS. So when it comes to—and then when it comes to

pay compression, I guess it becomes very—I am sort of moving to

another subject—kind of difficult to hold on to folks and even to get

them in the process.

I know you can get somebody for $95,000. I got that. But as far

as attracting the better people, that is your major concern, is that

right, Judge Cowan?

Judge COWAN. Yes. Absolutely.

Mr. CUMMINGS. So you just got somebody that comes in at $95,000 who is an outstanding jurist or whatever they might be

doing, could probably make a lot more money doing something

else——

Judge COWAN. Yes.

Mr. CUMMINGS [continuing]. At that point in their career.

Judge COWAN. What you are going to get are a bunch of people

with failed law practices or people who just couldn’t cut it in private industry, that have the requisite number of years to qualify

for experience. They will submit applications. Now, hopefully, OPM

will design an examination that will weed a lot of those people out.

But we are really worried about the fact that this compression is

going to have a real quality effect on the corps of ALJs.

Mr. CUMMINGS. And have you seen evidence of that? How do you

all—I am trying to say this in a way where you don’t have to talk

about your colleagues. I mean, do you all have any kind of evaluation system short of somebody complaining? Are you following me?

Judge BERNOSKI. No, we don’t. There isn’t any evaluation system

for Administrative Law Judges. It is precluded by the Administrative Procedure Act and by Federal statute.

But, Mr. Cummings, with relation to the OPM statement, since

the register has been closed, since 1999, OPM has not had empirical data as to the quality of applicants that they will receive under

this current pay cap, quite frankly, because they haven’t been putting any applicants on the register; they haven’t been receiving any

applicants or administering the examination. So it is at best on

their part an educated guess; and we do not, I think, concur with

their conclusion.

Judge COWAN. If I might supplement upon that, I referred earlier

in my remarks that the chairman of my agency wrote to the President a number of years ago, 3 years ago, complaining about the

quality of the applicants we were seeing in the OPM register. I am

with the Federal Energy Regulatory Commission. We have very

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technical, very complex cases. You really need to have the right

kind of skills to do those kinds of cases. And he just wasn’t seeing—when we would bring applicants that OPM would certify up

to the chairman’s office and he would say, we don’t think they can

do the job. So it was a real concern. It hasn’t gotten any better. It’s

gotten worse, because the pay compression is even worse now than

it was then.

Mr. CUMMINGS. Who did you say you work for?

Judge COWAN. The Federal Energy Regulatory Commission.

Mr. CUMMINGS. So when it comes to judges in your area, they

have to have expertise with regard to energy?

Judge COWAN. They don’t necessarily, no. We don’t have that as

a requirement. As far as OPM examination is concerned, all judges

are equal. A judge in Social Security could conceivably be transferred and do our work. In fact, they have done that; and some of

them work out fine. But others may not work out so good. We are

really concerned about the general problem.

Mr. CUMMINGS. I understand that. But you are also concerned

about, yeah, quality.

But what I was thinking about is, in Maryland, they just had a—

there was an article in the Baltimore Sun the other day about one

of our circuit court judges and how he had to—I think they said

he spent a whole summer just trying to figure out how the Public

Service Commission works and with regard to energy problems in

Maryland, just so that he could be knowledgeable of even dealing

with a hearing. And I can imagine that would get—that could get

very, very complicated.

So if you have someone who is mediocre at best and who may

not be too quick on the draw with regard to learning the subject

matter, it is kind of hard, I guess, to have a truly fair hearing. Because it takes about, I assume, a certain base of knowledge just to

be able to even fully appreciate and understand the arguments that

may be presented. Is that a fair statement?

Judge COWAN. I would agree with that.

Mr. CUMMINGS. So if whoever is in charge of the judges, say like

in your agency, ends up with a judge who is clearly not qualified

to hear those kinds of cases, there is not too much you can do it

about it, huh?

Judge COWAN. No, we are required basically to assign cases on

a rotational basis. So as they come in they get assigned to the next

available judge to the extent practicable.

Mr. CUMMINGS. What is your solution to this problem of compression? What do you see as a solution?

Judge COWAN. The solution would be—I would like to see a fresh

look at the whole structure, but the immediate solution would be

to establish a cap at a higher level. That is a stopgap measure.

But I think the American public deserves a fresh look at compensation for judges across the board, non-Article III judges, which

is what this committee is looking at. I think it is a wonderful idea

to do that, and we are appreciative of it.

Mr. CUMMINGS. Let me say one last thing. I agree with you. I am

a lawyer. I practiced for 20-plus years, and for the life of me, I

could not, I never could, understand why judges were not paid better. I mean, most of the judges I knew were very strong people in

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the legal profession. They could go out and make more money than

what they were making on the bench. And then people would

scream and holler if any mention was made of them making a decent salary.

It seems to me we have to protect all branches of our government, and I think the judicial branch plays as significant a role as

the legislative and executive. Hopefully we can take a look at this.

I agree with you on quality. To have justice, in order to make decent decisions, you have to start with a base of knowledge. If you

don’t have that base, you have a problem. I don’t consider that justice.

Thank you all very much.

Mr. PORTER. Thank you. I just have one additional question.

Entry level approximately $95,000, is that based upon what is

being paid, or is that where it begins? I would assume that a lot

of folks come in from other agencies and may be above the $95,000.

If they come in at $110,000, they start at $110,000?

Judge COWAN. If there is an intergovernmental transfer, they

transfer laterally at their highest level.

But there are other people that come from other jurisdictions or

the private sector, and they start at the lowest level.

Mr. PORTER. Your points are well taken. I concur with Mr.

Cummings that this is an important hearing, and we appreciate

hearing your perspectives.

As I said earlier, I think there are some other executive levels

in the government, senior government officials, that we need to

take a look at also.

Thank you very much for your testimony. We appreciate you

being here today. And with that, we will adjourn the meeting.

[Whereupon, at 3:03 p.m., the subcommittee was adjourned.]

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