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.
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?
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] Read More