What’s the evidence in this case that the [administrative] judges can’t work harder and handle 500 cases? – Richard Posner (2014)
I shall not inquire why Congress as it were “permits” judges not to work too hard, by increasing the number of judges and their staffs in order to meet increases in workload. . . .
Any effort by one judge to hear more than his proportional share of cases or snag more than his proportional share of writing assignments is not only rebuffed but resented. For one thing, it might result in Congress’s deciding that a smaller number of judges could handle the federal judicial workload. – Richard Posner, “What do Judges Maximize?”
This is the tenth installment in the “Posner on Posner” series of posts on Seventh Circuit Judge Richard Posner. The first installment can be found here, the second here, the third here, the fourth here, the fifth here, the sixth here, the seventh here, the eighth here, and the ninth one here.
Almost two decades ago, in a book titled The Federal Courts: Challenge and Reform (1985). Both his analysis of the problems facing federal courts and his calls for reform drew criticism from some members of the federal bench. See e.g. Judge Roger J. Miner’s 1997 review essay. Judge Posner was also a member of The Federal Courts Study Committee (1990).
Three years ago Judge Posner offered the following comment on the workload of the Supreme Court Justices:
“If you look hard enough [on the Court’s official website], you will find a paragraph implying misleadingly that the Court has a very heavy workload; in fact, in the last half-century its output has fallen, while its staff (consisting mainly of law clerks) has increased substantially, both in quantity and—because, since the late 1960s, a prior clerkship has become de rigueur for Supreme Court law clerks—in experience.”
Against that general backdrop, I thought it might be informative to consider a recent case that came before Judge Posner on the topic of case workloads. Earlier this month, on December 9th, a panel of the Seventh Circuit heard oral arguments in Association of Administrative Law Judges v. Colvin.
The Plaintiffs were members of the Association of Administrative Law Judges (all administrative law judges). They filed a complaint contesting a Benchmarks and Directive issued by the Social Security Administration (SSA) imposing an agency-wide requirement that SSA administrative law judges (ALJ) decide 500-700 cases per year. The ALJs alleged that SSA had imposed an illegal quota on them and thus violated their right to decisional independence under the Administrative Procedures Act. The District Court granted the Defendant’s motion to dismiss on the grounds that it lacked subject matter jurisdiction.
Below are some excerpts from an exchange during oral arguments in the Colvin case. The other two judges on the panel were Michael Kanne and Kenneth Ripple. Given the focus of this series, however, I quoted only Judge Posner’s questions and comments. The comments I have transcribed, though directed at administrative law judges, provide the reader with a general idea of the nature of some of Judge Posner’s concerns.
One final comment: If Judge Posner expects a lot of work from his fellow judges, both administrative law and Article III jurists, it may have something to do with his own (pardon the expression) Calvinist-like work ethic.
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Marilyn Zahm: . . . This case is about judicial integrity and the integrity of the entire administrative judicial system. It is a case about a quota that directs judges to issue favorable decisions or cut corners, denying claimants due process and fair adjudication of their cases. It is not a case about working conditions. . . . Administrative law judges have to have judicial independence . . . .
Judge Posner: I don’t see how this affects judicial independence.
Ms. Zahm: The quota directs that the judge issue favorable decisions or cut corners.
Judge Posner: No, no, that’s not a proper definition. The quota says you’re supposed to do what? — 500 to 700 cases a year?
Ms. Zahm: The quota says we have a minimum of 500 cases.
Judge Posner: Five hundred cases a year. Now how does having to do 500 instead of 400, or whatever people do, how does that interfere with your adjudicative independence?
Ms. Zahm: Because paying cases is faster, and it’s easier because those cases are not appealed. The government is not represented in our courtroom, and very little scrutiny is given to cases that are paid. There are no studies showing that a judge can properly adjudicate a minimum of 500 cases a year and still comply with the requirements of the APA, and all of the rules, regulations, and law of the Social Security Act. In fact, the agency asserts that it should take us two-and-a-half-hours to adjudicate a case. That includes: opening the file, reading all of the voluminous records – most of which are medical records – holding a full and fair hearing, developing the record, ensuring that all of the evidence . . .
[The Need to Work Harder]
Judge Posner: Well, you’re saying that to do a good job, they’ll have to work harder.
Ms. Zahm: I don’t think it’s a question of working harder.
Judge Posner: Why not? If they work harder, they can do what their doing now. Right?
Ms. Zahm: No, because it takes a certain amount of time to do the work. . . .
Judge Posner: But judicial workloads, for example, vary across districts, and circuits and so on. Some courts have heavier workloads, so the judges have to work harder. Is that an interference with judicial independence?
Ms. Zahm: If by working harder we could accomplish the 500 case minimum, we would not be here. It’s not a question of working harder. The work takes a certain amount of time . . .
Judge Posner: Why do you think they [the SSA has] done this?
Ms. Zahm: It’s political expediency.
Judge Posner: How do you mean?
Ms. Zahm: That, they have a certain amount of cases that have to be moved through the system, and therefore the judges are just going to move them through the system.
Judge Posner: Well, that sounds like a pretty good reason. Right?
Ms. Zahm: Not if it perverts the administrative . . . .
Judge Posner: But it only perverts it if the judges refuse to work harder.
Ms. Zahm: Again, Judge Posner, I don’t mean to disagree, but it’s not a question of working harder. If I worked harder . . .
Judge Posner: How do you know? How do we know? What’s the evidence of that?
Ms. Zahm: Well, you see the cases that we handle coming through your courtroom.
Judge Posner: What’s the evidence in this case that the judges can’t work harder and handle 500 cases?
Ms. Zahm: We are prepared to show at trial that this is not a case of requiring judges to work harder but perverting . . . .
Judge Posner: Well, how many cases did they handle before this rule?
Ms. Zahm: I think that varied . . .
Judge Posner: No, answer my question.
Ms. Zahm: . . . The average judge would probably handle between 300 and 500 cases prior to this.
Judge Posner: That sounds like an average of 400. So, what’s the evidence that if you increased their caseload by 25%, they can’t handle that increase?
[Rubber-stamping cases?]
Ms. Zahm: Well, I could handle 1oo cases a day if all I did is rubber-stamped them. It’s not a question of handling the cases. It’s a question of performing your statutory obligations of giving the claimant due process, of reading the entire record, of developing the case. And if you don’t do that the outcome is affected. Either you will pay the case . . . or you give the claimant short shrift. That’s not a judicial system that has any integrity.
Judge Posner: No, my question is more specific: Suppose the average administrative law judge handles 400 cases a year. How difficult is it for him to handle 500?
Ms. Zahm: I can speak from my own experience, because when I was a fulltime judge I did close to 400 cases a year. I was pushing it to do that many.
Posner’s Productivity – 90 opinions annually
[T]he Supreme Court justices write very, very few majority opinions. Last year they saw 74 cases. Divide that by nine and that’s a little more than eight opinions a year. That’s ridiculous! I write around 90 opinions a year. [Source here]
Judge Posner: So why doesn’t the agency hire more administrative law judges?
Ms. Zahm: Because Congress in the past has given the agency less money than it needs to accomplish its mission. The agency is in the process of hiring more judges. The problem is that there are more cases than ever. . . .
[Question from Judge Ripple re whether there was a “working condition” subject to the CSRA and response by Ms. Zahm]
[The 10-hour day hypothetical]
Judge Posner: What if [the agency] said, “to handle our heavy work load promptly, instead of working eight hours a day [chuckles], you have to work ten hours a day?
Marilyn Zahm
Ms. Zahm: Many of our judges are already working ten hours a day.
Judge Posner: That’s not a response to my question.
Ms. Zahm: If the agency said you have to work ten hours a day, they’d be violating other federal statutes.
Judge Posner: That’s not responsive either.
Ms. Zahm: I suppose that it is possible for a judge to work enough hours to do a credible job if you worked 15 hours a day. . . .
Judge Posner: . . . It looks as if that what they’re doing is making the judges work harder in order to expedite the output of these cases. . . . Not clear how it affects judicial independence.
Ms. Zahm: It affects judicial independence because it directs an outcome. It directs . . .
Judge Posner: No, it does not direct an outcome. That’s wrong.
Ms. Zahm: The federal circuit . . .
Judge Posner: You’re saying that what judges can do, they can take a shortcut. They’re not being told, “well, just grant benefits to everybody.” That’s certainly not the Social Security Administration’s [chuckles] goal. They’ve always been cheap, actually.
. . . .
Ms. Zahm: I think that it is impossible to perform the work that needs to be done to meet our statutory obligations with this minimum regardless of how hard the judge works or how long the judge works within any kind of reasonable bounds.
Judge Posner: Well, that’s fine. But remember, . . you call it a quota and so on, the Social Security Administration calls it a ‘goal,’ you should work for it, and so on and so forth. So, if you have an honest judge who is not just going to grant benefits automatically, to speed up the process, and he finds he can only do 450 cases a year. Well, he’s doing the best he can. Now, who knows what will happen as a result of that?
Ms. Zahm: We have pled a quota and we are prepared to establish that at trial. This is not some innocent attempt by the Agency to promote good public services.
Judge Posner: Well, what happens to someone who is, you know, good – and he’s rarely reversed by courts and so on – and he only does 450 cases. Now, what are they going to do to him? Are they going to tell him, “just grant, just grant the benefits [chuckles], that’s all you have to do.”
Ms. Zahm: They’re going to discipline him?
Judge Posner: How?
Ms. Zahm: Suspension, removal . . . .
[Comment by Judge Ripple]
Judge Posner: [Re the quota,] so what’s been the effect on the percentage of claims that are granted?
Ms. Zahm: That is a hard question to answer . . . . We do have statistics to show that judges who issue 500 decisions a year have a higher pay rate than judges who issue less that 500 decisions a year. We are prepared to show at trial that this quota affects the outcome of cases.
Judge Posner: But the causality could be the reverse. It could be that the judges who are prone to grant, for reasons unrelated to quotas, of course decide more cases.
Ms. Zahm: I think that we can show that it’s the pressure of the quota. . .
Judge Posner: How are you going to show that?
Ms. Zahm: We have statistics, we have testimony, we’ll have a study to show that . . . .
[Continuation of exchange Judge Ripple and Ms. Zahm]
[Political considerations?]
Judge Posner: Do you think the Social Security Administration wants more grants, and that’s why it’s doing this?
Ms. Zahm: No, I think it is political considerations. . . .
Judge Posner: What do you mean by political considerations?
Ms. Zahm: They have a certain number of cases, OMB says, “what are you going to do in terms of numbers of cases, for the amount of money that you’re being given.”
Judge Posner: They’re trying to expedite the cases to save money. They’re not trying to grant more. But you’re saying that it is a likely consequence that they will grant more.
Ms. Zahm: Yes, we can prove that.
Judge Posner: Well, what does that have to do with judicial independence?
Ms. Zahm: Well, directing the outcome of a case . . . .
Judge Posner: They’re not directing the outcome of the case. They’re telling these people “you have to produce faster.” And one, perhaps unavoidable consequence, is that there will be more grants. But that’s an incidental effect. Look, any change in employment could affect how they decide cases. Right?
Ms. Zahm: I don’t believe so. . . .
Judge Posner: Well, that’s not true. Suppose they reduce retirement benefits? . . .
Ms. Zahm: . . . But that doesn’t effect the outcome of the case. It might affect the judge’s employment, but it doesn’t affect the outcome of the case. . . .
Judge Posner: I don’t understand you. If a person is forced out, that is certainly interference with his judicial independence. He cannot decide cases [chuckles], you don’t have any independence any more.
Ms. Zahm: That’s true.
Judge Posner: Well, okay, thank you Ms. Zahm.
[End of Petitioner’s argument]
[Rebuttal]
. . .
Judge Posner: What is the worst thing that the Social Security Administration has done to administrative law judges who haven’t decided 500 cases a year?
Ms. Zahm: . . . What they do is, they threaten you by issuing directives. If you fail to follow the directive, then you will be suspended or terminated. Most people don’t want to put their jobs on the line, so they try to comply with the directive. . . .
Note: As of the date of this posting, the Seventh Circuit has not rendered its judgment in Association of Administrative Law Judges v. Colvin.
Posner: Shorten Judicial Opinions
One of the things one notices in Supreme Court opinions is that there’s a lot of pomposity. [Too many of those opinions are] “full of a kind of bullshit and that has a kind of self-conscious sense that ‘we’re trying to convince the public that this is big stuff’ . . . that will add to length.” [Source: here]
The next installment in the Posner on Posner series, the eleventh, will be a Q&A with the Judge’s biographer.That post will run on Monday, December 29th.
