OPM and ALJ Agencies Share ALJ Hiring, Pay, and Performance Management Responsibilities

The conditions of employment for ALJs are unique among federal  employees. HHS  officials stated that they are satisfied that the process provided them with  highly qualified candidates. 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. Agencies Could Experience Skill and Competency Gaps in ALJ Workforce Due to Potential Retirements

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. 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. 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. OPM is the lead agency in guiding federal human capital management at  executive branch agencies. 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. ALJ agencies must select their new ALJs from an OPM certificate  of qualified candidates. 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. 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. 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. 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. Consider the use of competencies in ALJ performance management  while not influencing ALJ compensation. Appendix I: Objectives, Scope, and Methodology

Based on a mandate accompanying the Consolidated Appropriations Act  of 2008, 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. Office of Personnel Management

OPM has managed the ALJ program since the agency was created in 1979. Identifying ALJ Performance Management Practices

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.
Why GAO Did This Study

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 Found

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.