GAO 

United States Government Accountability Office

Report to Congressional Addressees

RESULTS-ORIENTED 

CULTURES 

Office of Personnel 

Management Should 

Review Administrative 

Law Judge Program to 

Improve Hiring and 

Performance 

Management 

January 2010 

GAO-10-14 
What GAO Found

United States Government Accountability Office

Why GAO Did This Study

Highlights

Accountability Integrity Reliability

January 2010

RESULTS-ORIENTED CULTURES 

Office of Personnel Management Should Review 

Administrative Law Judge Program to Improve Hiring

Highlights of GAO-10-14, a report to and Performance Management 

congressional addressees 

The Administrative Procedure Act 

established unique conditions for 

administrative law judges’ (ALJ) 

hiring and employment to protect 

their decisional independence. 

However, the potential for a wave 

of retirements and other events 

have focused attention on how 

ALJs are hired and managed. In 

response to the Consolidated 

Appropriations Act of 2008, this 

report examines, among other 

things, (1) the process for hiring 

ALJs and selected agencies’ 

observations of the process; 

(2) ALJs’ retirement eligibility and 

retirement issues; (3) and agency 

managers’ reported ALJ 

performance management 

practices and stakeholders’ views 

of these practices. To address these 

objectives GAO reviewed relevant 

statutes, regulations, Office of 

Personnel Management (OPM) 

retirement-related data, and other 

program-related documents, and 

interviewed officials from OPM, 

ALJ professional associations, and 

the two largest federal agencies 

employing ALJs—the Social 

Security Administration (SSA) and 

the Department of Health and 

Human Services (HHS). 

What GAO Recommends

GAO is making recommendations 

to OPM regarding ALJ hiring and 

performance management. OPM 

agreed with the hiring-related 

recommendation, but disagreed 

with applying the term 

“performance management” to 

ALJs. GAO clarified the statutory 

basis for its recommendations and 

retained its recommendations. 

SSA and HHS officials responsible for hiring new ALJs reported they were 

satisfied with the quality of the judges hired from OPM’s ALJ register of 

qualified candidates in 2008. Despite their satisfaction with these ALJ 

candidates, agency officials raised several issues regarding ALJ hiring and 

offered suggestions to improve the process, including (1) opening the OPM 

registry to accept new candidates more frequently, (2) giving greater 

consideration to agency-specific knowledge and experience, and (3) providing 

additional agency flexibility in meeting the procedural requirements 

associated with selecting from the three best qualified candidates and 

awarding veterans’ preference. OPM officials reported they are working to 

address these issues and develop new approaches, where appropriate. 

ALJ agencies could experience skill and competency gaps in the ALJ 

workforce in the near future. As of September 2008, the most currently 

available data, 51 percent of all ALJs were already eligible to retire. Moreover, 

by 2013, 78 percent of all ALJs employed as of September 2008 will be eligible 

to retire, while at 9 of the 25 ALJ agencies, all of the ALJs were eligible to 

retire. Retiring employees can leave gaps in institutional knowledge and 

technical skills due, in part, to the time required for new hires to become fully 

productive. To ensure agencies have talented staff to accomplish their 

missions, OPM requires agencies to make meaningful progress toward closing 

skills, knowledge, and competency gaps/deficiencies in all occupations in the 

agency. Despite the significant proportion of ALJs who were eligible to retire 

from 2008 to 2013, OPM officials reported that, as of October 2009, they had 

no record of any federal agency designation of ALJ skill gaps or competency 

issues. OPM, as ALJ program manager and lead agency in federal human 

capital management, could use its annual review of federal agencies’ human 

capital accountability plans to assure that ALJ agencies appropriately identify 

and plan for future ALJ related skill and competency gaps. 

To safeguard the independence of ALJ decisionmaking, ALJ agencies are 

prohibited from rating or tying an ALJ’s compensation to their performance. 

Nevertheless, SSA and HHS officials reported using numerous other practices 

to manage ALJ performance. ALJ association officials were concerned some 

SSA performance management practices could affect ALJs’ decisional 

independence. The use of competencies in ALJ performance management 

might help OPM and ALJ agencies define needed ALJ skills and behaviors, 

ensure objective and balanced performance discussions between managers 

and ALJs, and enhance consistency in ALJ performance, while not influencing 

ALJ compensation. Given its role as ALJ program manager and its expertise in 

performance management, OPM is well-positioned to lead a review of all 

agencies’ ALJ-related management practices. 

View GAO-10-14 or key components.

For more information, contact Robert 

Goldenkoff at (202) 512-2757 or 

goldenkoffr@gao.gov. 
Page i GAO-10-14 

Contents 

Letter 1

Background 4 

SSA and HHS Officials Are Satisfied with Recent ALJs Hired from 

Register, but Officials Believe Their Needs Could Be Better Met 

with More Hiring Flexibility 8 

Agencies Could Experience Skill and Competency Gaps in ALJ 

Workforce Due to Potential Retirements 12 

Agencies Manage ALJs without the Use of Performance Ratings or 

Competencies 15 

Several Options Have Been Proposed to Revamp ALJ Program 

Management 21 

Conclusions 24 

Recommendations for Executive Action 26 

Agency and Third-Party Comments and Our Evaluation 27 

Appendix I Objectives, Scope, and Methodology 31 

Appendix II Comments from the Office of Personnel Management 37 

Appendix III GAO Contact and Staff Acknowledgments 38 

Related GAO Products 39 

Tables 

Table 1: OPM and ALJ Agencies Share Responsibilities for 

Managing ALJ Hiring, Pay and Performance Management 6 

Table 2: Majority of ALJs Eligible to Retire at 21of 25 ALJ Agencies 

by the End of Fiscal Year 2008 12 

Table 3: Examples of SSA or HHS Reported Management Practices 

Used to Directly and Indirectly Affect ALJ Performance 17 

Table 4: Summary of Key Features of Current Program and 

Proposed Options 21 

 Results-Oriented Cultures 
Abbreviations 

AALJ Association of Administrative Law Judges 

ABA American Bar Association 

ALJ Administrative Law Judge 

APA Administrative Procedure Act 

Appeals Council Office of Appellate Operations 

CBA Collective Bargaining Agreement 

CPDF Central Personnel Data File 

DAB Departmental Appeals Board 

DDS Disability Determination Services 

FALJC Federal Administrative Law Judge Conference 

FERS Federal Employment Retirement System 

HARP Human Resources Products & Services Division 

HCAAF Human Capital Assessment and Accountability 

 Framework 

HCLMSA Human Capital Leadership & Merit System 

 Accountability Division 

HHS Department of Health and Human Services 

MSPB Merit Systems Protection Board 

NCALJ National Conference of the Administrative Law 

 Judiciary 

ODAR Office of the Deputy Commissioner for Disability 

 Adjudication and Review 

OMHA Office of Medicare Hearings and Appeals 

OPM Office of Personnel Management 

SHRP Strategic Human Resources Policy Division 

SSA Social Security Administration 

SSAB Social Security Advisory Board 

SSI Social Security Income 

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Page ii GAO-10-14 Results-Oriented Cultures
Page 1 GAO-10-14 

 

United States Government Accountability Office

Washington, DC 20548 

 

January 15, 2010 

Congressional Addressees 

Each year, federal administrative law judges (ALJ) adjudicate hundreds of 

thousands of disputes between federal agencies and private parties 

relating to such issues as entitlement to benefits, professional licensing, 

regulations, and contracts. Collectively, their decisions can simultaneously 

affect a substantial number of Americans and make significant 

commitments on behalf of the federal government. For example, each 

year, ALJs at the Social Security Administration (SSA) decide cases that, 

collectively, commit the federal government to pay out millions of dollars 

in disability benefits to thousands of Americans. In 2008, 25 federal 

agencies employed approximately 1,400 ALJs, with SSA employing over 

three-quarters of all federal ALJs. 

For decades, policymakers have debated ALJ hiring and employment 

issues, in the context of protecting the decisional independence of ALJs 

and promoting the ability of agencies to effectively and efficiently resolve 

their cases. Because recent events and trends could affect, in part, the 

capacity of the ALJ workforce to effectively adjudicate current and future 

cases in a timely fashion, the importance of addressing these issues has 

become more pressing. 

For example, at the same time that a growing proportion of ALJs was 

becoming eligible for immediate retirement, the Office of Personnel 

Management (OPM) was involved in protracted litigation over the manner 

in which veterans’ preference was applied to the rating of applicants for 

ALJ positions.1

 As a result, OPM was under a series of administrative 

orders to suspend the use of its list of qualified candidates, referred to as 

the ALJ register, in hiring new ALJs and to suspend accepting new 

applications from 1999 to 2003 (except for short periods in 2001).2

 In 2003, 

after prevailing in the lawsuit that triggered the administrative order, OPM 

updated and reopened the ALJ register for use by the agencies but 

1

When applying for federal jobs, veterans are entitled, by law, to a veterans’ preference of 

either 5 or 10 additional points to their application scores, depending on whether or not 

they were disabled or meet other preference requirements. 

2

Meeker v. OPM, 319 F.3d 1368 (3rd Cir. 2003); cert. denied, Azdell v. James, 540 U.S. 1218 

(2004). 

 Results-Oriented Cultures 
 

generally did not permit new applicants to take the examination.3 From 

2003 through 2006, OPM generally did not accept new applications to the 

register but retained the ALJ register so that the ALJ agencies could hire 

new ALJs from among the eligible candidates. In October 2007, OPM 

established a new ALJ register based on a new examination and the 

previous ALJ register was terminated.4

 Agencies began hiring from the new 

register in fiscal year 2008. Meanwhile, the growth in the number of 

disability cases awaiting disposition at SSA prompted a number of SSA 

management initiatives aimed at reducing the backlog of these cases as a 

means of increasing ALJ productivity. 

Based on a mandate accompanying the Consolidated Appropriations Act 

of 2008,5

 this report examines (1) the process for hiring ALJs and selected 

agencies’ observations on the process; (2) ALJ retirements and retirement 

eligibility; (3) the reported ALJ management practices at SSA and HHS, 

and the stakeholders’ views of these practices; and (4) the options that 

have been proposed to improve the management of the ALJ workforce, 

either within existing authorities or requiring new authorities. 

To address these four objectives, we reviewed related statutes, 

regulations, testimonies, announcements, correspondence, manuals, and 

other program documentation gathered from OPM, and the two federal 

agencies employing about 88 percent of ALJs—SSA and the Department of 

Health and Human Services (HHS). We also obtained testimonies, 

announcements, correspondence, contracts, guidelines, and other related 

documentation from the Association of ALJs (AALJ), a union representing 

ALJs at SSA and HHS; the Federal ALJ Conference (FALJC), a professional 

association of federal ALJs and ALJ managers; and the American Bar 

Association’s (ABA) National Conference of the Administrative Law 

Judiciary, a professional association of federal ALJs who are also 

members of the ABA.6

 In addition, we interviewed officials from these 

 

3

Certain preference eligibles are entitled by law to reopen an examination for which OPM 

maintains a register. See 5 C.F.R. §332.311. 

4

According to OPM, candidates on the previous register had to take and complete the new 

ALJ examination in order to be placed on the new ALJ register. 

5

Pub. L. 110-161, 121 Stat. 1844 (2007). 

6

Among the ALJ-related associations, these three associations report the largest 

membership of federal ALJs and have repeatedly represented the ALJ community in either 

hearings before Congress or in correspondence with OPM. A description of these 

associations is provided in appendix I. 

Page 2 GAO-10-14 Results-Oriented Cultures
 

agencies and associations. At SSA we interviewed ALJ managers from the 

Office of Disability Adjudication and Review, who conduct impartial 

hearings and make decisions on appealed determinations involving 

retirement, survivors, disability, and supplemental security income 

benefits. At HHS, we interviewed ALJ managers from the Office of 

Medicare Hearings and Appeals, who conduct appeal hearings for the 

Medicare program and who make a new and impartial decision in 

accordance with the applicable law, and managers from the Departmental 

Appeals Board, who provide impartial, independent review of disputed 

decisions in a wide range of HHS programs under more than 60 statutory 

provisions. Due to ongoing litigation,7

 we did not collect detailed 

information regarding OPM’s use of its ALJ register in 2007 and 2008. In 

addition to the research methods described above, we undertook other 

data collection and analyses to address specific objectives. To review ALJ 

retirement and retirement eligibility, we analyzed employment data from 

OPM’s Central Personnel Data File (CPDF), which is OPM’s human 

resources reporting system. To identify the proposed options to improve 

ALJ performance management, we reviewed numerous related legislative 

proposals and proposals from OPM, SSA, the three associations, and the 

Social Security Advisory Board.8

 We selected three proposals because, 

collectively, they contained the major design features of other more 

narrowly focused options and compared these three proposals with the 

current ALJ program features. See appendix I for more information on our 

scope and methodology. 

We conducted this performance audit from September 2008 through 

January 2010 in accordance with generally accepted government auditing 

standards. Those standards require that we plan and perform the audit to 

obtain sufficient, appropriate evidence to provide a reasonable basis for 

our findings and conclusions based on our audit objectives. We believe 

 

7

In 2007, the AALJ and several ALJs filed suit against OPM regarding the final rule 

published March 20, 2007, which revised the ALJ program. The plaintiffs challenged a 

provision that would require sitting ALJs to maintain an active bar membership, and also 

challenged as arbitrary and capricious under the Administrative Procedure Act’s 

rulemaking requirements OPM’s issuance of a Qualification Standard for applicants, OPM’s 

notice to federal agencies that a vacancy announcement for ALJ positions would be posted 

soon, and OPM’s imposition of a numerical cutoff for ALJ applications. The litigation was 

ongoing as of September 2009. 

8

The Social Security Advisory Board is an independent seven-member bipartisan Advisory 

Board formed to advise the President, the Congress, and the Commissioner of Social 

Security on matters relating to the Social Security and Supplemental Security Income (SSI) 

programs. 

Page 3 GAO-10-14 Results-Oriented Cultures
 

that the evidence obtained provides a reasonable basis for our findings 

and conclusions based on our audit objectives. 

The ALJ position was created by the Administrative Procedure Act of 1946 

(APA)9

 The APA separated the rulemaking functions from administrative 

adjudication proceedings in federal agencies, and sought to ensure 

fairness and due process in both. The APA provides for formal hearings in 

certain cases where a party has been affected by an agency decision or 

determination. 

Background 

Typically, ALJs have two primary duties in the administrative adjudication 

process. The first duty is to preside over the taking of evidence at agency 

hearings and act as the finder of facts in the proceedings. An ALJ’s other 

main duty is to act as a decision maker by making or recommending an 

initial determination about the resolution of the dispute. In these regards, 

ALJs, who are executive branch employees, function much like trial judges 

in the judicial branch.10 In general, ALJs hear cases that fall into four 

different categories: (1) enforcement cases; (2) entitlement cases; (3) 

regulatory cases; and (4) contract cases. Depending on the rules relevant 

to the particular issue in dispute, the hearings can be either adversarial, 

where the parties or their representatives debate evidence and law before 

the ALJ, or non-adversarial, where the ALJ investigates the facts and 

develops the arguments both for and against each party. 

In fiscal year 2008, the federal government employed 1,436 civilian ALJs at 

25 agencies. The ALJ agencies11 are extremely diverse, ranging from 

components of cabinet-level agencies, such as the U.S. Coast Guard at the 

Department of Homeland Security, to independent agencies such as SSA, 

the National Transportation Safety Board and the Securities and Exchange 

Commission. SSA employed the largest number of federal ALJs with 1,192 

ALJs (83 percent of the federal ALJ workforce), distantly followed by HHS, 

which employed 72 ALJs, about 5 percent of the ALJ workforce. Seventeen 

ALJ agencies each employed 5 or fewer ALJs. 

 

9

Pub. L. 79-404, 60 Stat. 237 (1946). When the APA was enacted in 1946, ALJs were called 

hearing examiners. Congress changed the title to administrative law judges in 1978. Pub. L. 

95-251, 82 Stat. 183 (1978). 

10CRS, Administrative Law Judges: An Overview, RL34607 (Washington, D.C.: August 5, 

2008). 

11In this report we refer to federal agencies employing ALJs as ALJ agencies. 

Page 4 GAO-10-14 Results-Oriented Cultures
 

The conditions of employment for ALJs are unique among federal 

employees. In order to ensure ALJs carry out their duties impartially, the 

Administrative Procedure Act (APA) stipulates that ALJs are to be 

independent of their employing agencies in matters of appointment, tenure 

and compensation. To achieve this objective, the APA assigns 

responsibilities for the ALJs to three agencies: OPM, the ALJ agency, and 

the Merit Systems Protection Board (MSPB). 

OPM and ALJ Agencies 

Share ALJ Hiring, Pay, and 

Performance Management 

Responsibilities 

The ALJ agencies are responsible for managing the ALJs they hire. MSPB 

has a role in disciplining ALJs. Under its authority to issue regulations 

implementing the APA, the OPM regulations divide the responsibilities for 

hiring, pay and performance management12 among OPM, the ALJ agency 

and the MSPB. Table 1 lists how the major hiring, pay and individual 

performance management responsibilities are divided between OPM and 

the ALJ agency. 

OPM has a number of responsibilities for ALJs under the statutory 

framework of the APA. OPM is responsible for administering the exam and 

creating a register of qualified candidates for ALJ positions.13 OPM also has 

the authority to prescribe regulations regarding (1) various sections of the 

APA governing ALJs;14 (2) implementing the section governing the 

appointment of ALJs;15 (3) implementing the requirements that ALJs be 

assigned cases in rotation as so far as is practicable and not perform 

 

12According to OPM’s performance management guidance, employee performance 

management in the federal sector generally includes planning work and setting 

expectations, continually monitoring performance, and developing the capacity to perform 

(see “Overview,” Performance Management (Washington, D.C.: OPM, Dec. 2009), 

http://www.opm.gov/perform/overview.asp (accessed Dec. 11, 2009)). Although the 

guidance also includes elements of performance management that can not be applied to 

ALJs, such as rating ALJ performance, there are performance management practices that 

we discuss later in this report that can in fact be applied. Employee performance refers to 

the employee’s accomplishment of work assignments or responsibilities. GAO has noted 

that federal agencies can develop effective performance management systems by 

implementing a selected, generally consistent set of key practices that create a clear 

linkage—“line of sight”—between individual performance and organizational success and, 

thereby, transform their cultures to be more results-oriented, customer-focused, and 

collaborative in nature. See GAO, Results-Oriented Cultures: Creating a Clear Linkage 

between Individual Performance and Organizational Success, GAO 03-488 (Washington, 

D.C.: March 14, 2003). 

135 U.S.C. § 1104(a)(2). 

145 U.S.C. § 1305. 

155 U.S.C. § 3105. 

Page 5 GAO-10-14 Results-Oriented Cultures
 

duties inconsistent with their duties and responsibilities as ALJs;16 (4) 

implementing the detail provisions of the APA, which allow details of ALJs 

to agencies with occasional or temporary needs for ALJs as selected by 

OPM;17 (5) regulations excluding ALJs from the definition of employee for 

the purposes of performance appraisals;18 and (6) implementing the three 

levels of basic pay for ALJs and allowing OPM to provide for appointment 

of an ALJ in the lowest level at an advanced rate where OPM deems it 

appropriate.19

Table 1: OPM and ALJ Agencies Share Responsibilities for Managing ALJ Hiring, 

Pay and Performance Management 

ALJ employment responsibilities OPM ALJ agency

Hiring 

Examination and selection of qualified ALJ candidates √

Maintaining register of qualified ALJ candidates √

Provide list of certified candidates to ALJ agencies upon request √

Selection and appointment of ALJs at ALJ agency from list of 

certified candidates 

√

Determining the number of ALJ positions at agency √

ALJ tenure √

Appointment of retired annuitants √ √

Pay 

Establishing the three levels of pay for ALJs, and rates of pay 

within each level 

√

Assigning each ALJ position at an agency to a pay level √

Determining qualifications for appointment to each pay level √

Paying an ALJ applicant a higher rate of pay due to prior federal 

service 

√

Paying an ALJ applicant a higher rate of pay due to superior 

qualifications 

√ √

Promoting ALJ to higher pay level √ √

Placements and temporary assignments 

Noncompetitive placements, e.g., transfers √ √

 

16Id. 

175 U.S.C. § 3344. 

185 U.S.C. § 4301(2)(D). 

195 U.S.C. § 5372. 

Page 6 GAO-10-14 Results-Oriented Cultures
 

ALJ employment responsibilities OPM ALJ agency

Intra-agency detail or temporary assignment √ √

Performance management 

Defining permitted management activities √

Performance ratings prohibited 

Awards or bonuses prohibited 

Routine management of ALJs √

Assignment of cases to ALJ, in rotation √

Ensuring decisional independence √ √

Source: GAO analyses of USC sections relating to ALJs and OPM March 2007 ALJ regulations. 

In the hiring of ALJs, OPM is responsible for examining applicants and 

certifying qualified candidates, while the ALJ agency is responsible for 

identifying the number of new ALJs they require and appointing individual 

ALJs from OPM’s list of certified candidates. As required by the APA, OPM 

sets the three levels of pay for ALJs, determines the qualifications required 

for appointment to each level, assigns each of the agency’s ALJ positions 

to one of the pay levels, and determines the time-in-service required to 

advance to a higher pay level. OPM must provide prior approval before an 

ALJ agency can appoint retired annuitants, pay an ALJ applicant a higher 

rate of pay due to superior qualifications, promote ALJs to higher pay 

levels, or execute noncompetitive placements (e.g. transfers), intra-agency 

details or temporary assignments. Once the ALJ is employed, OPM and the 

ALJ agency share responsibility for managing the ALJ’s performance. For 

example, OPM defines those management practices that ALJ agencies may 

not perform, such as issuing performance ratings and awards and the ALJ 

agency is responsible for day-to-day management. According to its 

implementing regulation, OPM shares the responsibility with the ALJ 

agency for ensuring the ALJ’s decisional independence.20 The APA divides 

the responsibility for disciplining of ALJs between the ALJ agency and the 

MSPB. The APA permits the agencies to take serious disciplinary action21

against an ALJ only for good cause as established and determined by the 

MSPB on the record, after an opportunity for hearing before the board. 

 

20Decisional independence refers to the ability of administrative law judges to exercise 

independent judgment based on the evidence, free from pressures by the parties or other 

officials within the agency. Butz v. Economou, 438 U.S. 478, 513 (1978). 

21The disciplinary actions covered are removal, suspension, reduction in grade, reduction in 

pay, or furlough of 30 days or less. 

Page 7 GAO-10-14 Results-Oriented Cultures
 

Policymakers, ALJ agencies, and other stakeholders have been discussing 

aspects of ALJ management for decades. Over the years, several options 

have been proposed to change the roles and responsibilities for the 

administration of the ALJ program. Three of these options are described in 

more detail later in this report. Over this same timeframe, to help support 

deliberations on ALJ issues, we have issued more than 10 reports where 

the focus was either on ALJs at specific agencies or on the federal ALJ 

program (see list of related GAO products at the end of this report). Most 

recently, we issued two reports relating to ALJ performance at SSA and 

the Department of Homeland Security.22

In 2007, OPM revised its examination of ALJ applicants by, among other 

things, revising the minimum qualification requirements, developing a set 

of competencies,23 assessing applicants against the competencies, and 

changing the examination scoring method. According to OPM, in fiscal 

year 2008, SSA hired 185 ALJs and HHS hired 7 ALJs from the register 

established as a result of OPM’s new ALJ examination.24 SSA officials told 

us that they are very pleased with the quality of ALJs they hired. HHS 

officials stated that they are satisfied that the process provided them with 

highly qualified candidates. 

OPM is responsible for scoring the results of the competitive examination 

and maintaining a register of qualified candidates in rank order of their 

final scores. According to OPM officials, after the job announcements in 

2007 and 2008, it took about 6 months for OPM to complete the 

examination process and assign the final ratings to qualified applicants. 

SSA and HHS Officials 

Are Satisfied with 

Recent ALJs Hired 

from Register, but 

Officials Believe Their 

Needs Could Be 

Better Met with More 

Hiring Flexibility 

 

22See GAO, Social Security Disability: Performance Measures and Better Cost Estimates 

Could Help Improve SSA’s Efforts to Eliminate Its Hearings Backlog, GAO-09-398 

(Washington, D.C.: September 9, 2009) and GAO, Coast Guard: Administrative Law Judge 

Program Contains Elements Designed to Foster Judges’ Independence and Mariner 

Protections Assessed Are Being Followed, GAO-09-489 (Washington, D.C.: June 12, 2009). 

23OPM defines “competency” as a measurable pattern of knowledge, skills, abilities, 

behaviors, and other characteristics needed to successfully perform work-related tasks. 

OPM indicated their ALJ competencies applied to both incoming and incumbent ALJs. 

24In addition, according to OPM, Department of Labor hired 2 ALJs and Department of 

Housing and Urban Development hired 1 ALJ from the new register. As of August 4, 2009, 

the Social Security Administration had hired 143 ALJs and the U.S. Postal Service had hired 

1 ALJ from the new register during fiscal year 2009. 

Page 8 GAO-10-14 Results-Oriented Cultures
 

The pool of potential ALJ applicants appears to be large because in 2007 

and 2008 OPM was able to receive the requested number of applications in 

only a few days. According to OPM officials, when OPM reopened the ALJ 

register in 2007, they received the desired number of applications within 1 

week of posting an ALJ vacancy announcement. In 2008, OPM received its 

desired number of applicants within 3 days. In November 2009, OPM 

opened a new vacancy announcement for ALJ vacancies. It received the 

requested number of applicants within 2 days. 

Upon request, OPM provides ALJ agencies with a certified list, referred to 

as a certificate, of the highest scoring candidates from the register who are 

available to serve at the vacancy locations. If agency officials choose to fill 

a vacant ALJ position with a new ALJ, then the agency must appoint one of 

the candidates listed on OPM’s certificate. The interview and selection 

processes vary across ALJ agencies, but all agencies must comply with 

federal law and regulations regarding competitive employment. For 

example, agencies must comply with the veterans’ preference requirement 

and the “rule of three”—agencies must select from the highest scoring 

three candidates available to serve in a given location. SSA and HHS 

officials told us that it took 8 to15 weeks from the date the agency 

requested an OPM certificate of candidates until a selected candidate 

reported to work. 

Despite their satisfaction with the quality of the ALJ candidates, SSA and 

HHS officials stated that the ALJ hiring process should have more 

flexibility in order for them to appoint candidates that best meet their 

agency-specific needs. According to SSA officials, OPM uses a one-sizefits-all approach in establishing its register of candidates. SSA officials’ 

reported position was that OPM’s ALJ examination of applicants should 

also weigh the specialized knowledge and skills needed to adjudicate SSA 

cases such as the ability to manage a large docket because SSA ALJs 

adjudicate a high volume of cases, and the temperament to work on nonadversarial cases with unrepresented claimants. SSA was also concerned 

about the process for assessing whether an ALJ candidate on an OPM list 

of certified candidates was actually suitable for selection and 

Page 9 GAO-10-14 Results-Oriented Cultures
 

appointment.25 SSA officials told us that they currently try to assess the 

specialized abilities and the potential suitability of ALJ candidates through 

SSA’s ALJ interviewing process and investigating the candidates’ 

backgrounds. SSA officials told us that, in their opinion, the process was 

laborious, and requested that OPM assess the suitability of candidates 

listed on the certificates provided to agencies. Lastly, SSA raised concerns 

about the adequacy of the register to meet their hiring needs. Given SSA’s 

plans to hire more than 226 ALJs during fiscal year 2010, SSA officials 

reported to us their concern that the register would not provide an 

adequate number of suitable candidates to consider for selection. SSA 

requested that OPM refresh the register with new candidates as soon as 

possible and plan to do so, on a regular basis. 

The Chief ALJ of HHS’s Office of Medicare Hearings and Appeals (OMHA) 

also noted that OPM’s examination process does not provide HHS with 

candidates who have specialized knowledge important for adjudicating 

cases in HHS. He thought, for example, that having 3 years of Medicare 

experience would be an asset for an incoming OMHA ALJ. He suggested 

that there should be a more flexible process to enable the agency to select 

candidates who might be a better fit for the agency’s work. The Chair of 

HHS’s Departmental Appeals Board did not have specific comments 

regarding the current hiring process. This board had not had an ALJ 

vacancy to fill from 2003 through 2008, and thus, had not hired an ALJ 

from the OPM register in 2007 or 2008. 

The OPM official responsible for the competitive examination process 

reported that OPM experts concluded that having certain specialization or 

expertise would not produce a better cadre of ALJs. In OPM’s view, the 

most important characteristic that ALJs need is the ability to master lots of 

facts rather than specialized knowledge. Consideration of any additional 

flexibility in ALJ hiring must await the conclusion of pending litigation. 

 

25According to OPM, an employing agency’s offer of employment to a candidate is generally 

made prior to a suitability assessment, and conditioned upon a subsequent determination 

that the candidate is suitable for federal employment. Agencies are free to request an 

investigation as soon as a name is forwarded on a certificate. When an agency, acting under 

delegated authority, determines that a governmentwide debarment by OPM may be 

appropriate, it must refer the matter to OPM for debarment consideration prior to any 

proposed suitability action. When suitability concerns arise, agencies may alternatively 

submit to OPM an “objection” or a request to “pass over” a particular candidate, based 

upon the criteria set out in the suitability regulations. In June 2009, SSA raised concerns 

regarding 7 of 400 candidates that had recently been submitted to it on ALJ certificates. 

Page 10 GAO-10-14 Results-Oriented Cultures
 

With regard to SSA’s interest in assessing the suitability of all ALJ 

candidates on the register, OPM reported in July 2009 that it was reviewing 

the documentation SSA provided regarding specific candidates. OPM 

noted that the suitability review process encompassed both a background 

investigation and an adjudication, either at the hiring agency or at OPM, 

depending upon the nature of any issues identified during the 

investigation. Agencies are required to reimburse OPM for each 

background investigation it conducts. Although ALJ agencies could 

request OPM undertake a suitability investigation at any point in the 

process, selecting officials usually commence the suitability assessment 

process only when the agency is ready to make a selection because of the 

expense associated with conducting a proper suitability investigation. 

OPM indicated that there was no appropriate mechanism whereby OPM 

could undertake suitability assessments in advance on all the candidates 

on the ALJ register, and has not received an appropriation to conduct 

investigations at its own expense. 

Regarding SSA’s request for a routine refreshment of the ALJ register, 

OPM indicated that it refreshes its register of ALJ candidates by offering 

its ALJ examination to new applicants and completing its examination of 

the applicants. As examining ALJ applicants requires significant assistance 

of retired and sitting ALJs, OPM does not want to overburden these ALJs 

by offering the examination too frequently. According to OPM, the ALJ 

register was most recently refreshed in March 2009. The timing for 

opening the examination is based on several considerations, such as future 

hiring needs. OPM regularly queries agencies about their projected ALJ 

hiring needs and uses the agencies’ responses to plan when to readminister the ALJ examination. As of July 2009, they anticipated they 

could issue certificates that would provide an ample number of choices 

from which to select candidates to meet the agencies’ reported hiring 

needs. OPM and SSA officials are addressing the issues SSA raised and, 

where appropriate, are developing new approaches and solutions. 

Page 11 GAO-10-14 Results-Oriented Cultures
 

ALJ agencies could face skill and competency gaps unless ALJ agencies 

and OPM take concerted action to assure that, in the face of significant 

retirement eligibility, the ALJ agencies have developed ALJ hiring and 

succession plans. As of September 2008, the most current data available, 

51 percent of employed ALJs were eligible to retire by the end of 2008. By 

2013, 79 percent of ALJs will be eligible for retirement. To put these 

numbers in perspective, we recently reported that about one-third of the 

federal workforce on board at the end of fiscal year 2007 will be eligible to 

retire by 2012.26

Agencies Could 

Experience Skill and 

Competency Gaps in 

ALJ Workforce Due to 

Potential Retirements 

The proportion of ALJs who were eligible to retire was not the same at 

each of the 25 ALJ agencies (see table 2). As of September 2008, at 9 of the 

25 ALJ agencies, all of the ALJs were already eligible to retire and at 21 of 

the agencies half or more of the ALJs were eligible to retire. At 4 of the 25 

agencies, less than half of the ALJ workforce was eligible to retire. 

Table 2: Majority of ALJs Eligible to Retire at 21of 25 ALJ Agencies by the End of 

Fiscal Year 2008 

Federal agencies employing ALJs 

Number of 

ALJs 

employed 

Number 

eligible to 

retire 

Percentage of 

agency’s ALJs 

eligible to retirea

1 Social Security Administration 1,192 598 50

2 Department of Health and Human 

Servicesb

72 19 26

3 Department of Labor 41 21 51

4 National Labor Relations Board 40 34 85

5 Department of Energy 15 9 60

6 Occupational Safety & Health Review 

Commission 

11 8 73

7 Department of Interior 10 5 50

8 Federal Mine Safety and Health 

Review Commission 

9 6 67

9 Department of Homeland Security 5 3 60

10 U.S. International Trade Commission 5 4 80

11 Federal Labor Relations Authority 4 1 25

12 Environmental Protection Agency 4 3 75

 

26For more information, see GAO, Older Workers: Enhanced Communication among 

Federal Agencies Could Improve Strategies for Hiring and Retaining Experienced 

Workers, GAO-09-206 (Washington, D.C.: February 24, 2009). 

Page 12 GAO-10-14 Results-Oriented Cultures
 

 Federal agencies employing ALJs 

Number of 

ALJs 

employed 

Number 

eligible to 

retire 

Percentage of 

agency’s ALJs 

eligible to retirea

13 Securities and Exchange 

Commission 

4 4 100

14 National Transportation Safety Board 4 4 100

15 Department of Agriculture 3 3 100

16 Department of Justice 3 2 67

17 Department of Transportation 3 3 100

18 Commodity Futures Trading 

Commission 

2 2 100

19 Federal Communications 

Commission 

2 2 100

20 Department of Housing and Urban 

Development 

2 1 50

21 Department of Education 1 1 100

22 Federal Trade Commission 1 0 0

23 Federal Maritime Commission 1 1 100

24 Small Business Administration 1 1 100

25 Department of the Treasury 1 0 0

Total 1,436 735 51

Source: GAO analysis of OPM Central Personnel Data File for Fiscal Year 2008. 

a

Rounded to the nearest percentage. 

b

The ALJ statistics for HHS are for Office of the Secretary, which includes the Office of Medicare 

Hearings and Appeals and the Departmental Appeals Board and employed 71 ALJs, and the Food 

and Drug Administration, which employed 1 ALJ. 

Administrative law judges are typically older and have served the public 

longer than other federal employees. For example, as of fiscal year 2008, 

these ALJs were, on average, about 61 years old and had about 21 years of 

federal service. In contrast, as of 2005, the average age of the federal 

workforce governmentwide was about 46 with about 15 years of service. 

Despite the widespread retirement eligibility of the ALJ workforce, most 

ALJs do not retire immediately upon becoming eligible to retire. In 2007, 

about 72 percent of administrative law judges were still in the federal 

workforce more than 5 years after their eligibility date. Overall, the ALJ 

program has experienced a low annual retirement rate, ranging from 2 to 5 

percent from 2002 through 2006, which was about the same as the total 

federal workforce, which we noted is younger and generally has fewer 

years of service. 

Page 13 GAO-10-14 Results-Oriented Cultures
 

ALJ retirements could significantly affect agencies’ adjudication capacities 

in two ways. First, retirements could significantly affect those agencies 

employing a small ALJ workforce. For the 15 agencies employing fewer 

than 5 ALJs, one retirement represents a loss of 25 percent or more of 

their ALJ capacity, at least temporarily. Secondly, ALJ retirements could 

also have a more pronounced effect at those agencies facing increasing 

case workloads because the agency would be losing experienced ALJs at a 

time when demand for their services is increasing. For example, in 2008, 

SSA hearing offices received nearly 590,000 claims, an increase of about 6 

percent from 2006. In March 2009, the SSA Commissioner projected that, 

due to the economic downturn, SSA would receive approximately 50,000 

more hearing requests in fiscal year 2009 than in fiscal year 2008. HHS’s 

Office of Medicare Hearings and Appeals has also experienced an 

increasing workload in recent years. In January 2009, the HHS Inspector 

General reported that, from July 2006 to May 2008, the office’s caseload 

increased 37 percent to over 28,000 cases, while the number of cases with 

the 90-day decision requirement more than tripled, from 6,079 to 20,720 

cases. 

Although it appears there are abundant candidates to fill vacant positions, 

we have reported that retiring employees can leave gaps in institutional 

knowledge and technical skills. These gaps can arise because, among 

other reasons, it can take several months for new hires to become fully 

productive. For example, at SSA, it takes 1 to 2 months to train a new ALJ, 

plus an additional 9 months of on-the-job experience, before SSA 

considers a new ALJ to be fully productive. 

While actual ALJ retirements lag eligibility by several years, the agencies 

cannot rely on either the low ALJ retirement rate or the lag between 

eligibility and retirement to remain constant. According to OPM, although 

demographic factors such as age and years of service can help predict time 

of retirement, other factors that are not available are likely to have a much 

larger impact on retirement decisions. Such factors include familial 

situations, illness, caretaker status, children in college, the cost of tuition 

for their children, and others. The lack of data for some of these factors 

may limit the accuracy of retirement forecasts. 

OPM is the lead agency in guiding federal human capital management at 

executive branch agencies. To assess federal agencies’ human capital 

management, OPM established the Human Capital Assessment and 

Accountability Framework (HCAAF). One of the assessment standards 

relates to ensuring agencies have the talented staff that their mission 

requires. To meet this standard, OPM requires agencies to make 

Page 14 GAO-10-14 Results-Oriented Cultures
 

meaningful progress toward closing skills, knowledge, and competency 

gaps in all occupations used in the agency. Furthermore, the standard 

requires the agencies particularly to close skills, knowledge, and 

competency gaps in mission-critical occupations.27 For example, SSA’s 

Fiscal Year 2009-2011 Strategic Human Capital Plan, SSA identified ALJs 

as a mission-critical occupation and developed a set of ALJ-specific 

competencies to guide its ALJ recruitment, retention, and workforce 

development initiatives. Despite the significant proportion of ALJs who 

were eligible to retire between 2008 and 2013, OPM officials told us that, 

as of October 2009, they had no record or knowledge of any federal agency 

designation of ALJ skill gaps or competency issues. 

Agencies Manage 

ALJs without the Use 

of Performance 

Ratings or 

Competencies 

SSA and HHS Use 

Numerous Practices Other 

Than Performance Ratings 

to Manage ALJ 

Performance 

Performance management systems can be powerful tools in helping an 

agency achieve its mission and ensuring employees are working toward 

common ends. Performance management systems should help employees 

understand their responsibilities and how their day-to-day work 

contributes to meeting their agency’s strategic goals as well as providing a 

mechanism for giving employees candid, specific feedback on how well 

they are meeting their performance expectations. According to OPM’s 

performance management guidance, employee performance management 

in the federal sector generally includes planning work and setting 

expectations, continually monitoring performance, developing the 

capacity to perform, periodically rating performance in a summary 

fashion, and rewarding good performance. However, in order to ensure 

that an ALJ is not unduly influenced by his or her employing agency, 

renders impartial decisions, and appears impartial, the APA and OPM 

regulations do not permit the employing agency to rate or tie an ALJ’s 

compensation to the ALJ’s performance. 

 

27Mission-critical occupations can be identified as mission-critical across the federal 

government or for a specific agency. 

Page 15 GAO-10-14 Results-Oriented Cultures
 

Nevertheless, SSA and HHS managers reported that they employed a 

variety of practices other than ratings to directly and indirectly manage 

ALJ performance. An example of the variety in management practices is 

observed at HHS. There, the Chief ALJ of the Office of Medicare Hearings 

and Appeals (OMHA), a large hearing office, assigned more staff 

management responsibilities to his ALJs than the Chair of the 

Departmental Appeals Board (DAB), a smaller hearing office, assigned to 

her ALJs. At HHS’s OMHA, which employed 65 ALJs at the end of fiscal 

year 2008, ALJs directly supervised their legal teams, attorney, paralegal 

specialist and legal assistant. In contrast, at HHS’s DAB, which employed 6 

ALJs at the end of fiscal year 2008, the ALJs did not supervise support 

staff. 

Agency managers and ALJs described the ALJs’ performance as 

significantly influenced by the hearing office performance, although the 

degree of dependency varies by ALJ agency.28 Within this context, agency 

managers reported using a wide variety of practices to either directly 

influence ALJ performance, or to indirectly influence ALJ performance by 

addressing hearing office performance. The practices focused on such 

areas as hearing office management and staffing, case management, 

quantity and quality of adjudications, tools to expedite adjudication, 

workplace privileges, and progressive discipline. We did not assess the 

extent to which various practices were used at SSA and HHS, nor their 

effectiveness or appropriateness. 

 

28The hearing office at the ALJ agency provides the organizational, logistical and 

administrative support needed for the ALJ to conduct the on-the-record hearings. These 

hearings are complex processes due, in part, to the numerous steps and people involved in 

processing a claim. For a detailed description of generic ALJ duties and responsibilities see 

Internet edition of Morell E. Mullins, Manual for ALJ, University of Arkansas (Little 

Rock, Ark., 2001), 

http://www.oalj.dol.gov/PUBLIC/APA/REFERENCES/REFERENCE_WORKS/ 

MALJ_NAVIGATION.HTM (accessed Feb. 19, 2009). 

Page 16 GAO-10-14 Results-Oriented Cultures
 

Table 3: Examples of SSA or HHS Reported Management Practices Used to Directly 

and Indirectly Affect ALJ Performance 

Direct management 

practices Example 

Coaching Holding informal discussions, encourageing peer competition, 

providing formal executive coaching 

Workplace privileges Approving requests for flexi-place, training 

Training Providing ALJs with training on case management and 

adjudication 

Quality Setting goals and measures, routinely reviewing of decisions, 

tracking measures, providing feedback and training to ALJs 

Quantity/productivity Setting goals and measures, tracking measures, providing 

feedback, feedback and training to ALJs 

ALJ conduct Tracking and responding to complaints regarding ALJ 

conduct 

Progressive discipline Providing counseling, issuing letters of reprimand, filing a 

case with the MSPB 

Indirect management practices 

Hearing office 

management 

Hearing office manager supervising support staff; assigning 

support staff to various ALJs 

Staffing Employing sufficient number of ALJs and support staff to 

meet caseload demands 

Training Providing managers with regular training on managing 

caseload, ALJs and support staff 

Case management Setting case processing benchmarks, developing expedited 

procedures 

Use of tools to expedite 

case processing 

Using of electronic document processing, standardizing of 

process steps, using video or teleconferencing 

Source: GAO analyses of ALJ-related documents from SSA, HHS, OPM, AALJ, ABA, and FALJC, and interviews with these agency 

and association officials. 

The direct practices reported are common to managing the performance of 

all federal employees. For example, SSA and HHS ALJ managers reported 

providing informal feedback and coaching. The indirect practices reported 

addressed aspects of the hearing process that were not directly under the 

control of the ALJ. For example, one indirect approach was to improve the 

efficiency of case processing by using electronic document processing, 

standardizing process procedures, and tele- and videoconferencing. 

Page 17 GAO-10-14 Results-Oriented Cultures
 

ALJ agency managers and officials from ALJ-related associations 

expressed differing views regarding current performance management 

practices. Managers at HHS’s OMHA and DAB thought that statutory and 

regulatory deadlines were helpful in managing ALJ productivity. The Chief 

ALJ for OMHA thought that their most significant performance 

management problem was having enough resources to meet the demands 

of their work. He felt there were sufficient safeguards in place to 

effectively manage the performance of his supervisory ALJs, while 

avoiding interference in the ALJs’ decision making. The Chair of HHS’s 

Departmental Appeals Board found she could effectively manage the ALJs’ 

performance by engaging them in improving the hearing process. Yet, 

while each thought either a performance rating or award could be a useful 

management tool in certain situations, if available, they reported they were 

able to manage effectively without such tools. AALJ and FALJC did not 

raise concerns about specific ALJ management practices at either HHS 

office. 

ALJ Stakeholders Raised 

No Concerns about HHS 

Practices, but Are 

Concerned with SSA’s Use 

of Productivity Goals 

At SSA, however, ALJ performance management was of much greater 

concern among ALJ stakeholders, especially pertaining to ALJ 

productivity.29 In 2007, in order to help SSA reduce its disability hearing 

backlog, the Chief ALJ requested the ALJs to manage their dockets in such 

a way that they would be able to issue 500-700 legally sufficient decisions 

each year. As of July 2009, SSA reported that the request had been an 

effective tool, among several others, in helping to raise ALJ productivity.30

Officials from the AALJ and FALJC questioned the use of a productivity 

goal as a major tool to manage ALJ performance for several reasons, 

including their view that SSA had not conducted a systematic study to 

validate the appropriateness of the numerical range of cases in the goal.31

According to AALJ, FALJC, and ABA officials, SSA’s emphasis on 

productivity is detrimental to maintaining or improving other important 

dimensions of ALJ performance, such as the quality of ALJ decision 

making. In addition, AALJ and the Social Security Advisory Board raised 

 

29The contention over ALJ productivity at SSA has been ongoing for over three decades. 

GAO has written several reports related to this issue, most recently GAO, Social Security 

Disability: Performance Measures and Better Cost Estimates Could Help Improve SSA’s 

Efforts to Eliminate Its Hearings Backlog, GAO-09-398 (Washington, D.C.: September 9, 

2009). 

30For fuller description of SSA ALJ productivity and its measurement, see GAO-09-398. 

31SSA had conducted a study prior to setting a previous ALJ productivity goal, in response 

to a GAO recommendation in GAO, Social Security: Many Administrative Law Judges 

Oppose Productivity Initiatives, GAO/T-HRD-90-39 (Washington, D.C.: June 13, 1990). 

Page 18 GAO-10-14 Results-Oriented Cultures
 

concerns that the agency’s emphasis on ALJ productivity may result in 

unintended consequences. For example, the AALJ and the Social Security 

Advisory Board noted an increase in the number of favorable decisions. 

The Advisory Board found that as the number of decisions increases, the 

percentage of favorable decisions tend to increase. The AALJ and the 

Social Security Advisory Board expressed concern because rendering a 

decision favorable to a party appealing an agency determination requires 

less ALJ time than rendering an unfavorable decision. SSA’s emphasis on 

ALJ productivity may lead to more favorable decisions and result in 

increasing long-term costs to the federal government.32 The Social Security 

Advisory Board suggested SSA monitor the correlation between the 

number of decisions and the number of favorable decisions. In contrast, 

SSA reported in December 2009 that the rate of favorable decisions 

(allowance rate) had not changed significantly from fiscal year 2001 

through the first quarter of fiscal year 2010. 

Competencies Provide a 

Fuller Picture of 

Performance 

We have reported that high-performing organizations both in the United 

States and abroad have applied, among other strategies, a set of 

competencies in their employee performance management to provide a 

fuller picture of performance. Importantly, we found that systematically 

applying competencies to guide employee performance management had 

several advantages beyond using competencies to rate or reward 

individual performance. These advantages include helping managers to 

structure their performance discussions, enhancing consistency in 

performance, and ensuring an objective, balanced review of all the areas 

significant to the performance of the individual. Lastly, we have reported 

that high-performing organizations that actively involve employees and 

stakeholders in developing the performance management systems and 

provide ongoing training on the systems help increase their employees’ 

understanding and ownership of the organizational goals and objectives.33

OPM and SSA have developed competencies to support other aspects of 

ALJ employment. As noted earlier, OPM uses a set of competencies in its 

 

32In 2006, a study calculated that the value of federal spending for the average Disability 

Insurance awardee was more than $245,000. This average cost per awardee translated into 

about $204 billion in annual federal costs for the 832,000 new awards made during the 2005. 

See D. Autor and M. Duggan, “The Growth in the Social Security Disability Rolls: A Fiscal 

Crisis Unfolding,” The Journal of Economic Perspectives, Vol. 20, No. 3, Summer 2006, pp. 

71-96. 

33See GAO-03-488. 

Page 19 GAO-10-14 Results-Oriented Cultures
 

examination of ALJ applicants, while SSA uses a set of ALJ competencies 

to assist in their workforce planning. However, OPM has not established 

performance competencies to guide ALJ agencies in their day-to-day 

management of ALJs. As noted earlier, APA and OPM regulations prohibit 

ALJ agencies from issuing performance ratings and awards to ALJs. Yet, 

recently, the ALJ associations urged OPM to implement a particular set of 

performance standards. Particularly, in 2006, the presidents of several ALJrelated associations, including AALJ and FALJC, urged OPM to support 

codifying into law or regulation ABA’s Model Code of Judicial Conduct as 

a standard for satisfactory ALJ conduct and performance to which ALJs 

must adhere. That same year, the ABA stated that they believed ALJs 

should be subject to, and accountable under, appropriate ethical standards 

adapted from its Model Code of Judicial Conduct.34 We did not assess the 

appropriateness or relative strengths of these different sets of 

competencies or standards. 

The use of competencies might also help OPM and the ALJ agencies to 

ensure the ALJs’ decisional independence, a responsibility unique to ALJ 

management and which OPM and the ALJ agency share. Even though the 

competencies may not be used to influence compensation, a set of 

validated competencies would help managers and ALJs to define the skills 

and supporting behaviors that ALJs need to effectively contribute to 

organizational results, and thereby a shared framework for discussing 

employee performance and management practices. Moreover, a set of 

validated competencies would also help ensure objective and balanced 

discussions between managers and ALJs regarding performance, and 

enhance the consistency of ALJ performance. Furthermore, OPM has 

expertise in providing performance management consulting to federal 

agencies. 

Without the systematic application of standards or competencies and 

other safeguards to employee performance management, contention over 

managing performance, such as at SSA, can arise and persist. For example, 

we have previously reported on the use of performance standards related 

to the quality and quantity of ALJ decisions to evaluate ALJ performance, 

first recommending their use in 1978.35 In 1990, we noted that the lack of a 

study to support SSA’s use of an ALJ performance goal (case dispositions 

 

34The most recent version of ABA’s Model Code of Judicial Conduct was published in 2007. 

35See GAO, Administrative Law Process: Better Management Is Needed, FPCD-78-25 

(Washington, D.C.: May 15, 1978). 

Page 20 GAO-10-14 Results-Oriented Cultures
 

per month) led to long-standing conflict between SSA and its ALJs.36 In 

setting its ALJ productivity expectation in October 2007, SSA officials 

indicated that they relied on recent historical ALJ productivity data, rather 

than conducting a systematic study. Officials from AALJ reported to us 

that SSA did not consult with them prior to issuing their ALJ productivity 

goal in October 2007. As noted earlier, the conflict between SSA and its 

ALJs over SSA’s use of an ALJ productivity goal continues into its third 

decade. 

Over the last 25 years, several statutory options have been proposed to 

change the employment and management of ALJs. The options have 

addressed to varying degrees several key issues, such as which federal 

agency manages the ALJ program, which agency employs ALJs, whether 

ALJs receive a performance appraisal, the purpose of the appraisal, and so 

forth. In this section, we summarize three statutory options which have 

been proposed, without assessing the strengths and weaknesses of each 

proposal. We selected these three proposals because, collectively, these 

proposals contained the major design features of other more narrowly 

focused options. 

Several Options Have 

Been Proposed to 

Revamp ALJ Program 

Management 

Table 4: Summary of Key Features of Current Program and Proposed Options 

Current program 

features 

ALJ Corps 

H.R. 1802 (1995) 

ALJ Conference 

H.R.5177 (2000) 

Social Security 

Advisory Board (2006)

Management of the ALJ Program 

Program Manager OPM Corps Chief ALJ and 

council 

Conference 

Chief ALJ 

OPM 

Require a dedicated office to manage the 

program 

No Yes Yes 

Organization selecting candidates from 

applicants 

OPM OPM Conference SSA and OPM 

Organization appointing candidate to ALJ ALJ agency Corps council Conference ALJ agency 

Terms and conditions of ALJ 

employment 

Career or term appointment for Chief ALJ Career 5-year term 5-year term 

Appointment of ALJs Career Career Career 

 

36See GAO, Social Security: Many Administrative Law Judges Oppose Productivity 

Initiatives, GAO/HRD-90-15 (Washington, D.C.: December 7, 1989). 

Page 21 GAO-10-14 Results-Oriented Cultures
 

Current program 

features 

ALJ Corps 

H.R. 1802 (1995) 

ALJ Conference 

H.R.5177 (2000) 

Social Security 

Advisory Board (2006)

Organization setting the ALJs’ pay and 

compensation 

OPM OPM Conference OPM 

ALJs eligibility for bonus or award for nonjudicial duties No Yes 

Management of ALJs 

Organization assigning ALJ to agency ALJ agency 

and OPM 

Corps council Conference and 

assigned agency 

Agency Chief ALJ 

Organization managing ALJs’ daily work ALJ agency Corps division Chief 

ALJs 

Agency Chief ALJ Agency Chief ALJ 

Organization establishing rules of judicial 

practice 

ALJ agency Corps council Conference 

Chief ALJ 

Agency Chief ALJ 

Use of a judicial code of conduct for 

performance standards 

No Yes Yes 

MSPB determines good cause before 

employing agency takes adverse action 

Yes Yes Yes Yes 

Organization carrying out adverse 

disciplinary actions 

ALJ agency Corps council Conference Agency Chief ALJ 

ALJ-specific performance or conduct 

standards established 

No Yes Yes Yes 

Performance appraisals permitted No Yes 

Source: GAO analyses of legislation and Social Security Advisory Board 2006 report. 

Note: a blank cell means the description of the proposed option did not address this specific program 

feature. 

ALJ Corps Option The ALJ Corps option was proposed repeatedly in Congress between 1983 

and 1995.37 The 1995 version of the legislation was intended to ensure the 

impartial resolution of cases by changing the APA in order to establish an 

independent corps of ALJs within the executive branch of government. 

The corps would organize ALJs into divisions of practice areas; each led 

by a supervisory division chief ALJ who would serve as a liaison between 

the division and the agency that required ALJ services. The head of the 

ALJ Corps, the Chief ALJ, would be a presidential appointee with Senate 

confirmation. The Chief ALJ and the division chief ALJs would serve on 

the Corps Council. This body and a Complaint Resolutions Board would 

review complaints against ALJs. The council would have the authority to 

take disciplinary action against ALJs if MSPB determined there was “good 

 

37Most recent proposed legislation was the Reorganization of the Federal Administrative 

Judiciary Act, H.R. 1802, 104th Congress (1st Sess. 1995). 

Page 22 GAO-10-14 Results-Oriented Cultures
 

cause.” The legislation did not provide additional details regarding ALJ 

performance management. 

A major difference between the ALJ Corps option and the current system 

is that ALJs would no longer be employed by the agency whose cases they 

are hearing. Instead, they would be employed by the corps. The Corps 

Council and the division chief ALJs would assign ALJs to the agencies, 

manage their workload, establish a code of conduct and establish the rules 

of the judicial practice. OPM’s role would be limited to selecting 

candidates from among job applicants and maintaining the register of 

qualified candidates. This legislation passed the Senate in 1993, but was 

not considered for a vote by the House of Representatives. 

ALJ Conference Option The ALJ Conference option was proposed in the House of Representatives 

in May of 1998 and September of 2000.38 The 2000 version of the legislative 

proposal changes the APA in order to create the ALJ Conference of the 

United States to, among other objectives, “promote efficiency, 

productivity, and the improvement of administrative functions, [and] to 

enhance public service and public trust in the administrative resolution of 

disputes.” The conference would be led by a Chief ALJ who would be a 

presidential appointee with Senate confirmation and who could serve a 

maximum of two 5-year terms. Unlike the ALJ Corps option, this option 

proposed to eliminate OPM’s ALJ program responsibilities. This proposed 

legislation was not considered for a vote by the House or the Senate. 

The major difference between the ALJ Conference option and the current 

system is that all of OPM’s current program responsibilities, such as the 

applicant examination and maintaining a register of qualified candidates, 

would be transferred to the ALJ Conference. The legislation would also 

allow the Chief ALJ to adopt and issue rules of judicial conduct for ALJs as 

long as those rules were consistent with the ABA’s Model Code of Judicial 

Conduct for ALJs. The rules of conduct would provide for a voluntary 

alternative dispute resolution process conducted at the request of the ALJ. 

The legislation did not provide additional details regarding managing ALJ 

performance. 

 

38Most recent proposed legislation was the Administrative Law Judge Conference of the 

United States Act, H.R. 5177, 106th Congress (2nd Sess. 2000). 

Page 23 GAO-10-14 Results-Oriented Cultures
 

The latest proposed option came from the Social Security Advisory Board 

in 2006.39 The board’s option suggested making statutory changes to allow 

for case processing guidelines and rating of ALJs. The intended purpose of 

the board’s suggestions was to increase accountability in the hearing 

process, and, according to board officials, provide useful information to 

ALJs and management. To protect against any interference with their 

decisional independence, this option would have the agency establish a 

system to investigate allegations from ALJs of such interference and to 

take appropriate action. OPM would have oversight responsibility for this 

activity and could review the agency’s response to allegations and 

recommend further action. ALJs would also continue to have the other 

protections for decisional independence that are provided by statute: their 

pay would be set in accordance with OPM guidelines and the agency must 

provide an ALJ an opportunity for a hearing before the Merit Systems 

Protection Board and their establishment of good cause before taking any 

adverse action against the ALJ. 

Social Security Advisory 

Board Option 

The major difference between the Advisory Board’s option and the current 

system is that the board’s option allows the ALJ agency, through the 

agency’s Chief ALJ, to conduct performance appraisals for ALJs. These 

reviews would consider ALJ performance relative to such criteria as case 

processing guidelines, judicial comportment and demeanor, and 

adherence to law, regulation, and binding agency policy. The guidelines 

would be set in collaboration with the ALJs’ union, agency members, and 

others. The reviews would not include a numerical rating or ranking or 

determine pay, but would provide feedback on performance to assist ALJs 

in improving themselves and their general discipline. According to 

Advisory Board officials, the board recommendation would not affect 

ALJs’ pay. 

To date, these three proposed options have not progressed to 

consideration by both houses of Congress. 

Officials from SSA, the largest ALJ employer, told us they were satisfied 

with the quality of their 2008 ALJ candidates, as did officials from HHS’s 

Office of Medicare Hearings and Appeals, the next largest employer of 

Conclusions 

 

39Social Security Advisory Board, Improving the Social Security Administration’s 

Hearing Process (Washington, D.C., September 2006). The Board’s report also included 

recommendations to improve performance in the absence of an ALJ performance appraisal 

system. 

Page 24 GAO-10-14 Results-Oriented Cultures
 

ALJs. However, these officials told us that, in their opinion, there should 

be more flexibility in the ALJ hiring process in order to better meet their 

needs. OPM is responsible for the examination of ALJ applicants and the 

certification of qualified ALJ candidates, the first phase in the ALJ hiring 

process. ALJ agencies must select their new ALJs from an OPM certificate 

of qualified candidates. Beyond these two largest ALJ employers, which 

were the focus of our work, OPM could benefit from collecting the views 

from ALJ agencies employing smaller numbers of ALJs about the new 

hiring process and the potential need for additional flexibilities. As the 

federal agency authorized to administer the governmentwide ALJ program, 

including prescribing hiring regulations, OPM could help ALJ agencies 

develop strategies to address any concerns, either within the existing 

hiring process or by revising the process. 

To ensure federal agencies have talented staff, OPM requires agencies to 

make meaningful progress toward closing skills, knowledge, and 

competency gaps/deficiencies in all occupations used in the agency. A 

review of the ALJs’ retirement eligibility raises concerns about potential 

vulnerabilities in the future ALJ workforce. Given the high percentage of 

retirement-eligible ALJs across the federal government, the ALJ workforce 

is vulnerable to knowledge and skill gaps. Yet despite this vulnerability 

and OPM’s human capital management standard, OPM officials reported 

they had no record or knowledge of any federal agency designation of ALJ 

skill gaps or competency issues. OPM is well-positioned through its role as 

the ALJ program manager and its annual review of federal agencies’ 

human capital accountability plans to assure that ALJ agencies 

appropriately identify and plan for future ALJ-related skill and competency 

gaps. The identification of such gaps will enable OPM to provide ALJ 

agencies with necessary guidance, tools, and technical assistance to 

address agency ALJ workforce gaps. In addition, OPM can take a 

comprehensive view of the risks that retirements pose to the capacity of 

the ALJ workforce, and lead programwide initiatives, if necessary, to 

identify, minimize, and mitigate potential skill gaps. 

Given the many practices reportedly used to manage ALJ performance, the 

concerns raised by the ALJ-related associations regarding SSA emphasis 

on ALJ productivity, and the ALJ agency’s need to balance meeting its 

organizational goals with ensuring the ALJ’s decisional independence, 

OPM should review the state of ALJ performance management across all 

ALJ agencies. OPM is well-positioned to lead in reviewing the agencies’ 

ALJ-related management practices because it is the only federal agency 

with the statutory authority to investigate the entire ALJ program and, by 

regulation, defines those management practices that ALJ agencies may not 

Page 25 GAO-10-14 Results-Oriented Cultures
 

perform. Moreover, OPM and the ALJ agency share responsibility for 

managing the ALJ’s performance. Such a review could (1) identify the 

practices currently used to manage ALJ performance, (2) collect the views 

of ALJ managers and ALJs regarding effective ALJ performance 

management, (3) determine if the ALJ performance concerns raised at SSA 

are shared by ALJ managers across all ALJ agencies, or if such concerns 

are limited to a few ALJ agencies, and (4) ensure current practices do not 

infringe on ALJ decisional independence. If OPM and/or the ALJ agencies 

determine that the current ALJ performance management needs 

programwide or agency-level improvement, these agencies could develop 

agreed-upon competencies, using existing agency and professional 

competencies as starting points. While the agreed-upon competencies 

could not be used to influence ALJ compensation, they could help improve 

ALJ performance management by defining the skills and supporting 

behaviors that ALJs need to effectively contribute to organizational 

results, ensuring objective and balanced discussions between managers 

and ALJs regarding performance, and enhancing consistency of ALJ 

performance. 

Given OPM’s statutory authority for administering the ALJ program, we 

recommend the Director of OPM take the following five actions related to 

hiring and managing the performance of ALJs in order to (1) identify 

opportunities for continuous improvement of the ALJ hiring process, (2) 

identify and address potential competency gaps, and (3) identify 

opportunities for improved performance management practices while 

maintaining ALJs’ decisional independence: 

Recommendations for 

Executive Action 

• After current hiring related litigation is resolved, solicit ALJ agencies’ 

feedback on the new examination process and determine whether 

additional agency flexibilities are needed in the ALJ hiring process. 

• Assure ALJ agencies have identified the extent to which their ALJ 

workforce is vulnerable to knowledge and skill gaps and addressed 

these gaps in their annual human capital plans, if appropriate. OPM 

should assist agencies by providing guidance, tools and technical 

assistance to enable agencies to identify and address any skill or 

competency gaps in its ALJ workforce. 

Moreover, consistent with the need for ALJ decisional independence, lead 

a program-wide review with ALJ stakeholders of ALJ performance 

management options. This review should: 

• Determine the degree to which current practices are meeting the goals 

of the ALJ agencies and ensuring ALJs’ decisional independence. 

Page 26 GAO-10-14 Results-Oriented Cultures
 

• Consider the use of competencies in ALJ performance management 

while not influencing ALJ compensation. 

• Consider the development and distribution of programwide guidance 

for ALJ performance management and the involvement of ALJs and 

stakeholders in the development of such guidance in order to gain 

employee and management ownership of performance management 

systems. 

We provided a draft of this report to the Secretary of HHS, the 

Commissioner of SSA, and the Director of OPM for review and comment. 

The Acting Assistant Secretary for Legislation of HHS and the 

Commissioner of SSA provided technical comments which we 

incorporated as appropriate. The Director of OPM responded with written 

comments, which we have reprinted in appendix II. Consistent with our 

protocols, we provided a summary of the performance management 

section of the draft report to the officials from AALJ, the ALJ union, ABA, 

and FALJC for their comments. They also offered technical comments 

which we incorporated as appropriate. Collectively, they thought the 

report’s discussion of performance management was helpful and 

appreciated the effort made to ensure their views were presented 

accurately. Additionally, SSAB provided technical comments on our 

presentation of their results and ALJ option from their 2006 report, which 

we incorporated as appropriate. 

Agency and ThirdParty Comments and 

Our Evaluation 

OPM said it agreed with our recommendation that OPM consult with 

agencies prior to designing the next examination and was already planning 

to do so. Additionally, OPM expressed concern about the report’s focus on 

“performance management” a term OPM does not normally apply to ALJs. 

In OPM’s view, the term performance management, as defined in its 

regulations, is the effective use of performance appraisals, which are not 

used with ALJs. In OPM’s opinion, “tying the discussion in the report to a 

concept applied to employees who may be evaluated and provided with 

awards is somewhat confusing and could lead to unintended 

consequences in terms of agencies’ interactions with their ALJs.” OPM 

also commented that the report appeared to assume that OPM’s role in 

ALJ management was “well established and not subject to dispute.” 

Although OPM indicated that it was open to considering our “suggestions 

for the greater involvement of OPM in the management of ALJs,” OPM 

thought we should “tie that discussion to the statutory framework that 

actually applies to ALJs and indicate how it believes OPM could become 

more involved, within that framework.” 

Page 27 GAO-10-14 Results-Oriented Cultures
 

Our report notes that, as described by OPM guidance, performance 

management in the federal sector includes planning work and setting 

expectations, continually monitoring performance, developing the 

capacity to perform, periodically rating performance in a summary 

fashion, and rewarding good performance. Our report recognizes that, in 

accordance with APA and OPM regulations, ALJs are excluded from 

performance appraisals and awards. Nevertheless, other performance 

management practices are available to agencies to manage ALJ 

performance and agency managers reported to us that they are using such 

practices. As stated in our report, OPM could help employing agencies use 

these other practices to improve ALJ performance management, while 

helping both OPM and the ALJ agency ensure the ALJs’ decisional 

independence. 

Additionally, statutory provisions authorize OPM to prescribe regulations 

governing nearly all aspects of ALJ employment (the exception being that 

the Merit Systems Protection Board is responsible for discipline or 

removal of ALJs). Further, OPM is the only agency in the federal 

government with authority to issue regulations on ALJ employment. OPM’s 

authority to prescribe regulations includes the authority to “implement, 

interpret or prescribe law or policy...”40 For these reasons, we believe 

OPM has the authority to take a more active role in the management of the 

ALJ program, and that it should do so. OPM also provided technical 

comments which we incorporated, as appropriate. 

We are sending copies of this report to the congressional committees with 

jurisdiction over HHS and its activities; the Secretary of HHS; and the 

Director of OMB. In addition, the report will be available at no charge on 

the GAO Web site at http://www.gao.gov. 

 

405 U.S.C. § 552. 

Page 28 GAO-10-14 Results-Oriented Cultures
 

If you have any questions about this report, please contact me at (202) 512-

2757. Key contributors to this report are listed in appendix VI. Contact 

points for our Offices of Congressional Relations and Public Affairs may 

Robert N. Goldenkoff 

be found on the last page of this report. 

Director, Strategic Issues 

Page 29 GAO-10-14 Results-Oriented Cultures
 

List of Congressional Addressees 

The Honorable Tom Harkin 

Chairman 

The Honorable William Thad Cochran 

Ranking Member 

Subcommittee on Labor, Health and Human Services, Education, 

 and Related Agencies 

Committee on Appropriations 

United States Senate 

The Honorable David R. Obey 

Chairman 

The Honorable Todd Tiahrt 

Ranking Member 

Subcommittee on Labor, Health and Human Services, Education, 

 and Related Agencies 

Committee on Appropriations 

House of Representatives 

The Honorable George V. Voinovich 

Ranking Member 

Subcommittee on Oversight of Government Management, 

 the Federal Workforce, and the District of Columbia 

Committee on Homeland Security and Governmental Affairs 

United States Senate 

The Honorable Richard J. Durbin 

United States Senate 

The Honorable John S. Tanner 

Chairman 

Subcommittee on Social Security 

Committee on Ways and Means 

House of Representatives 

Page 30 GAO-10-14 Results-Oriented Cultures
Appendix I: 

Methodology 

Objectives, Scope, and 

Page 31 GAO-10-14 

Appendix I: Objectives, Scope, and 

Methodology 

Based on a mandate accompanying the Consolidated Appropriations Act 

of 2008,1

 this report examines: (1) the process for hiring administrative law 

judges (ALJ) and selected agencies’ observations on the process; (2) the 

level of retirement and retirement eligibility for ALJs; (3) the reported ALJ 

management practices at the Social Security Administration (SSA) and the 

Department of Health and Human Services (HHS), and the stakeholders’ 

views of these practices; and (4) the options that have been proposed to 

improve the management of the ALJ workforce, either within existing 

authorities or requiring new authorities. 

We focused our data collection on the ALJ hiring process since 2007 and 

reported performance management practices as described by agency and 

association officials. As noted earlier, due to ongoing litigation, we did not 

collect detailed information regarding Office of Personnel Management’s 

(OPM) use of its ALJ register in the 2007 and 2008 hiring. 

To address these four objectives, we reviewed related legal 

documentation, program documentation gathered from OPM, the two 

federal agencies employing about 88 percent of ALJs—SSA and HHS—and 

three major professional associations for ALJs: the Association of ALJs, 

the Federal ALJ Conference, and the American Bar Association’s National 

Conference of the Administrative Law Judiciary. We also conducted 

interviews with key officials from each of these organizations to gather 

information regarding each objective. 

Descriptions of ALJ 

Organizations Providing 

Hiring and Performance 

Information 

The following provides a brief description of each of the ALJ-related 

organizations providing hiring and performance information for this 

report. 

OPM has managed the ALJ program since the agency was created in 1979. 

The ALJ program was managed through an Office of Administrative Law 

Judges until OPM disbanded the office in 2003. OPM divided the program 

responsibilities among OPM units, as follows: 

Office of Personnel 

Management 

• General Counsel serves as the initial contact for ALJ issues 

 

1

Pub. L. 110-161. 

 Results-Oriented Cultures 
Appendix I: Objectives, Scope, and 

Methodology 

• Strategic Human Resources Policy (SHRP) Division has the lead for 

ALJ policy and regulations. 

• Human Resources Products & Services (HARP) Division generates the 

ALJ examination, ranking, and register. 

• Human Capital Leadership & Merit System Accountability (HCLMSA) 

Division handles the ongoing interaction with agencies and identifies 

their needs. They have the day-to-day agency liaison responsibility. 

SSA administers two disability programs—Disability Insurance and 

Supplemental Security Income—that provide cash benefits to claimants 

who believe that they can no longer work because of severe physical or 

mental impairments. SSA’s Office of the Deputy Commissioner for 

Disability Adjudication and Review (ODAR) oversees the adjudication of 

those cases where disability claimants appeal the agency determinations 

of their benefits. The ODAR consists of the Office of the Chief 

Administrative Law Judge—the principal consultant and advisor to the 

Deputy Commissioner on all matters concerning the ALJ hearing function; 

Office of Appellate Operations (Appeals Council)—the final level of 

administrative review under the Administrative Procedure Act for 

disability claims; and the Office of Management which provides 

administrative support for all related management and office automation 

activities. According to OPM data, as of September 2008, SSA employed 

1,192 ALJs. These ALJs were supervised by the Chief Administrative Law 

Judge, Deputy Chief ALJ, Regional ALJs, and Hearing Office ALJs. 

SSA Office of the Deputy 

Commissioner for Disability 

Adjudication and Review 

HHS’s Office of Medicare Hearings and Appeals (OMHA) was created in 

July 2005 when the responsibility for conducting appeals of Medicare 

benefit determinations transferred from SSA to HHS, Office of the 

Secretary. The Office of Medicare Hearings and Appeals (OMHA) is under 

the direction of the Chief Administrative Law Judge, who reports directly 

to Secretary of HHS. The Office’s ALJs issue decisions to appeals of 

agency determinations regarding Medicare claims brought under Parts A, 

B, C, and D of Title XVIII of the Social Security Act. Claimants who are 

dissatisfied with an ALJ decision can seek a further review and decision 

from the Medicare Appeals Council. In January 2009, the office employed 

65 ALJs, including the Chief ALJ, 4 managing ALJs, and 60 supervisory 

ALJs. 

HHS’s Office of Medicare 

Hearings and Appeals 

HHS’s Departmental Appeals Board (DAB), a component within the Office 

of the Secretary, is responsible for (1) reviewing certain disputes between 

grantees and constituent agencies of the department; (2) adjudicating 

certain civil remedies cases pursuant to delegations from the Secretary; 

and (3) performing other review, adjudication, and mediation services as 

HHS Departmental Appeals 

Board 

Page 32 GAO-10-14 Results-Oriented Cultures
Appendix I: Objectives, Scope, and 

Methodology 

assigned. The board’s ALJs hear and decide civil remedies cases and other 

cases as assigned. These cases include (1) sanctions against persons and 

entities associated with participation as a provider in federally funded 

health care programs or as an employee, contractor, or other fiscal 

relationship with the department; (2) contract abuses; and (3) termination 

of federal funding for alleged civil rights violations. In January 2009, the 

Board Chair reported she supervised five ALJs and one retired ALJ 

annuitant. 

The Association of Administrative Law Judges (AALJ) is a professional 

union representing the ALJs employed at SSA and HHS’s DAB. The AALJ 

has a collective bargaining agreement (CBA) with SSA which is in effect 

until 2010, and has had an interim CBA with HHS’ DAB since 2003. As of 

March 2009, according to the union president, the AALJ represented about 

1,100 of the approximately 1,400 federal administrative law judges, or over 

78 percent of ALJs in the federal workforce. 

Association of Administrative 

Law Judges 

The Federal Administrative Law Judges Conference (FALJC) is a voluntary 

professional association of federal administrative law judges who perform 

judicial functions within the executive branch of the government. FALJC 

was organized over 60 years ago. In 2008, FALJC reported that its 

membership includes judges from virtually every federal agency that 

employs administrative law judges. As of March 2009, FALJC officials 

reported there were 174 members (136 are active ALJs and 38 are retired 

ALJs) that included management-level ALJs and line ALJs. 

Federal Administrative Law 

Judges Conference 

The American Bar Association’s (ABA) Judicial Division represents judges 

who are members of ABA. As of March 2009, according to association 

officials, the Judicial Division had over 3,200 members. The division is 

comprised of six conferences: five judicial conferences and one lawyer 

conference. Federal ALJs formed what is now the National Conference of 

the Administrative Law Judiciary (NCALJ), as one of the Judicial 

Division’s six conferences, in 1971. According to association officials, both 

federal and state ALJs can be members of the NCALJ, and, as of March 

2009, the NCALJ had 233 members. According to an ABA official, there 

may be federal ALJs who are ABA members who are not also members of 

the Judicial Division or NCALJ since membership in these ABA 

suborganizations is voluntary. 

American Bar Association’s 

Judicial Division and National 

Conference of Administrative 

Law Judiciary 

ALJ Retirement-Eligibility 

and Retirement Rates 

To describe demographic data relating to the retirement eligibility of the 

ALJs, we analyzed employment data from OPM’s human resource 

reporting system, Central Personnel Data File (CPDF) for the federal 

Page 33 GAO-10-14 Results-Oriented Cultures
Appendix I: Objectives, Scope, and 

Methodology 

agencies employing ALJs. We used the pay plan code to identify and 

analyze ALJ data in OPM’s CPDF. We analyzed data on age, years in 

federal service, retirement eligibility, projected retirement rates, new 

hires, and similar characteristics of the ALJs. For most of the groupings, 

we examined the data from 1991 through 2008 and projected retirement 

eligibility through 2013. 

To determine the percentage of ALJs eligible to retire, we examined the 

fiscal year in which an employed ALJ is first eligible for voluntary 

(optional) retirement with an unreduced annuity. For example, employees 

under the Federal Employment Retirement System (FERS) are eligible to 

retire with reduced annuities at any age from 55 to 62 with 10 years of 

service or less. The penalty for FERS employees retiring from age 55 to 61 

with less than 20 years of service is that their annuity is reduced 5 percent 

for every year they are under age 62. We considered the penalty for 

retiring with less than 20 years under age 62 a disincentive and therefore 

did not include this methodology in the definition of “eligible to retire.” By 

including FERS employees that were eligible to retire on reduced annuity 

in the definition of eligible to retire inflates the percentage of ALJs eligible 

to retire. Thus, eligible to retire is defined as “eligible to retire with an 

unreduced annuity.” Moreover, we did not include temporary and term 

employees when calculating retirement eligibility because again, doing so 

inflates the percentage of employees that are eligible to retire in any given 

year. We defined age at the time the retirement action data was recorded; 

and the years of federal service was the effective date of service 

computation date as of September 30 of each CPDF file year. New hires 

data sets were created by comparing the employee identification numbers 

of the ALJs in the current year to that of the previous year. Any ALJ new to 

the data set in an analysis year was categorized as a new hire. 

For the purposes of our report, we did not independently verify these data 

for the years we reviewed; however, in a 1998 report, we found that 

governmentwide data from CPDF for key variables in this study (agency, 

age, retirement plan, pay plan used to identify ALJs, and type of personnel 

action that identified new hires) were 97 percent accurate or better.2

 Since 

our 1998 report, we have monitored OPM’s reporting requirements and 

data checks used to assure that CPDF data are reliable. We also reviewed 

OPM reports which note exceptions to OPM’s reporting requirements. 

 

2

GAO, OPM’s Central Personnel Data File: Data Appear Sufficiently Reliable to Meet Most 

Customer Needs, GAO/GGD-98-199 (Washington, DC.: Sept. 30, 1998). 

Page 34 GAO-10-14 Results-Oriented Cultures
Appendix I: Objectives, Scope, and 

Methodology 

In addition, to assess the reliability of data specifically used in the ALJ 

analyses we performed a variety of checks on the CPDF data to ensure 

they were complete, valid, and consistent with the OPM Guide to 

Personnel Data Standards. Although there were minor differences 

between agency reported numbers of ALJs and CPDF data, these 

differences would not change the findings of this report. Because the OPM 

CPDF data quality processes have not substantially changed since the 

cited 1998 GAO report, our monitoring of CPDF data, and the specific 

checks we performed on the ALJ data prior to our analyses, we conclude 

that CPDF data for the years covered in this report are sufficiently reliable 

for our purposes. 

To identify ALJ performance management practices and stakeholder views 

of these practices, we interviewed agency and association officials and 

reviewed prior reports and testimonies from OPM, SSA, SSAB, and HHS. 

We reviewed previous audits on ALJs conducted by GAO, and HHS’s and 

SSA’s Inspectors General. We also reviewed position papers and 

testimonies from a number of ALJ professional associations, AALJ, FALJC, 

and ABA. We also reviewed these documents to identify the factors 

affecting hearing office and ALJ performance. Given the scope of our data 

collection, it is not clear the extent to which the views offered by the 

officials from these agencies or ALJ-related associations are shared across 

all ALJ agencies or ALJs. We did not assess the extent to which various 

practices were used at SSA and HHS, nor their effectiveness or 

appropriateness. 

Identifying ALJ Performance 

Management Practices 

Contemporaneously with this study, another GAO team was conducting an 

analysis of SSA’s plan for reducing the hearings level backlog and 

preventing its recurrence, titled Summary of Initiatives to Eliminate the 

SSA Hearings Backlog.3

 This team conducted site visits to the National 

Hearing Center in Falls Church, Virginia and to three SSA regional 

offices—Atlanta, Georgia; Chicago, Illinois; and Seattle, Washington—to 

identify the factors contributing to, among other things, the agency’s 

hearings backlog. During these site visits, they interviewed a variety of 

staff, including Hearing Office Directors, ALJs, attorneys, and support 

staff. They also interviewed officials from three regional ODAR offices, 

two state Disability Determination Services (DDS) offices, one program 

 

3

See GAO, Social Security Disability: Performance Measures and Better Cost Estimates 

Could Help Improve SSA’s Efforts to Eliminate Its Hearings Backlog, GAO-09-398 

(Washington, D.C.: September 9, 2009). 

Page 35 GAO-10-14 Results-Oriented Cultures
Appendix I: Objectives, Scope, and 

Methodology 

service center, one SSA field office, and related professional associations. 

We collated from these interviews those responses germane to ALJ hiring 

and performance and added them to those comments obtained directly 

through this engagement. 

To identify the proposed options to improve ALJ performance 

management, we reviewed those options that had been proposed to 

Congress over the last 30 years. We drew on information collected through 

interviews, and our review of related reports, legislation and proposals 

from OPM, SSA, HHS, the three associations, and the Social Security 

Advisory Board (SSAB). Given the scope of our data collection, it is not 

clear if the concerns that prompted the proposals are shared across all ALJ 

agencies or ALJs. We selected the ALJ Corps, ALJ Conference and SSAB 

options because, collectively, they contained the major design features of 

other more narrowly focused options. We did not assess the relative 

strengths or weaknesses of these proposed options. 

Identifying Proposed Options 

Page 36 GAO-10-14 Results-Oriented Cultures
Appendix II: Comments from the Office of Appendix II: Comments from the Office of Personnel Management 

Personnel Management 

Page 37 GAO-10-14 Results-Oriented Cultures 
Appendix III: GAO Contact and Staff Appendix III: GAO Contact and Staff Acknowledgments 

Acknowledgments 

Robert N. Goldenkoff, (202) 512-2757 or goldenkoffr@gao.gov 

In addition to the contact named above, William Doherty, Assistant 

Director; Patricia Farrell Donahue, analyst-in-charge; Sara Daleski; Sharon 

Hogan; Sabrina Streagle; Gregory Wilmoth; Melanie Papasian; and William 

Trancucci made key contributions to this report. 

GAO Contact 

Staff 

Acknowledgments 

Page 38 GAO-10-14 Results-Oriented Cultures
Related GAO Products Related GAO Products 

Coast Guard: Administrative Law Judge Program Contains Elements 

Designed to Foster Judges’ Independence and Mariner Protections 

Assessed Are Being Followed. GAO-09-489. Washington, D.C.: June 12, 

2009. 

Human Capital: Trends in Executive and Judicial Pay. GAO-06-708. 

Washington, D.C.: June 21, 2006. 

Social Security Administration: Agency Is Positioning Itself to 

Implement Its New Disability Determination Process, but Key Facets 

Are Still in Development. GAO-06-779T. Washington, D.C.: June 15, 2006. 

Medicare: Incomplete Plan to Transfer Appeals Workload from SSA to 

HHS Threatens Service to Appellants. GAO-05-45. Washington, D.C.: 

October 4, 2004. 

SSA Disability Decision Making: Additional Steps Needed to Ensure 

Accuracy and Fairness of Decisions at the Hearings Level. GAO-04-14. 

Washington, D.C.: November 12, 2003. 

Social Security: Many Administrative Law Judges Oppose Productivity 

Initiatives. GAO/T-HRD-90-39. Washington, D.C.: June 13, 1990. 

Social Security: Many Administrative Law Judges Oppose Productivity 

Initiatives. GAO/HRD-90-15. Washington, D.C.: December 7, 1989. 

Additional Management Improvements Are Needed to Speed Case 

Processing at the Federal Energy Regulatory Commission. EMD-80-54. 

Washington, D.C.: July 15, 1980. 

Management Improvements In the Administrative Law Process: Much 

Remains to Be Done. FPCD-79-44. Washington D.C.: May 23, 1979. 

Administrative Law Judge Activities and the Hearing Process at the 

Federal Regulatory Commission. EMD-79-28. Washington, D.C.: February 

13, 1979. 

Administrative Law Process: Better Management Is Needed. FPCD-78-25. 

Washington, D.C.: May 15, 1978. 

(450712) Page 39 GAO-10-14 Results-Oriented Cultures
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