[House Hearing, 109 Congress]
[From the U.S. Government Publishing Office]




 
 FAIR AND BALANCED? THE STATUS OF PAY AND BENEFITS FOR NON-ARTICLE III 
                                 JUDGES

=======================================================================

                                HEARING

                               before the

                 SUBCOMMITTEE ON THE FEDERAL WORKFORCE
                        AND AGENCY ORGANIZATION

                                 of the

                              COMMITTEE ON
                           GOVERNMENT REFORM

                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED NINTH CONGRESS

                             SECOND SESSION

                               __________

                              MAY 16, 2006

                               __________

                           Serial No. 109-201

                               __________

       Printed for the use of the Committee on Government Reform


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

                                 ______

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                     COMMITTEE ON GOVERNMENT REFORM

                     TOM DAVIS, Virginia, Chairman
CHRISTOPHER SHAYS, Connecticut       HENRY A. WAXMAN, California
DAN BURTON, Indiana                  TOM LANTOS, California
ILEANA ROS-LEHTINEN, Florida         MAJOR R. OWENS, New York
JOHN M. McHUGH, New York             EDOLPHUS TOWNS, New York
JOHN L. MICA, Florida                PAUL E. KANJORSKI, Pennsylvania
GIL GUTKNECHT, Minnesota             CAROLYN B. MALONEY, New York
MARK E. SOUDER, Indiana              ELIJAH E. CUMMINGS, Maryland
STEVEN C. LaTOURETTE, Ohio           DENNIS J. KUCINICH, Ohio
TODD RUSSELL PLATTS, Pennsylvania    DANNY K. DAVIS, Illinois
CHRIS CANNON, Utah                   WM. LACY CLAY, Missouri
JOHN J. DUNCAN, Jr., Tennessee       DIANE E. WATSON, California
CANDICE S. MILLER, Michigan          STEPHEN F. LYNCH, Massachusetts
MICHAEL R. TURNER, Ohio              CHRIS VAN HOLLEN, Maryland
DARRELL E. ISSA, California          LINDA T. SANCHEZ, California
JON C. PORTER, Nevada                C.A. DUTCH RUPPERSBERGER, Maryland
KENNY MARCHANT, Texas                BRIAN HIGGINS, New York
LYNN A. WESTMORELAND, Georgia        ELEANOR HOLMES NORTON, District of 
PATRICK T. McHENRY, North Carolina       Columbia
CHARLES W. DENT, Pennsylvania                    ------
VIRGINIA FOXX, North Carolina        BERNARD SANDERS, Vermont 
JEAN SCHMIDT, Ohio                       (Independent)
------ ------

                      David Marin, Staff Director
                Lawrence Halloran, Deputy Staff Director
                       Teresa Austin, Chief Clerk
          Phil Barnett, Minority Chief of Staff/Chief Counsel

     Subcommittee on the Federal Workforce and Agency Organization

                    JON C. PORTER, Nevada, Chairman
JOHN L. MICA, Florida                DANNY K. DAVIS, Illinois
TOM DAVIS, Virginia                  MAJOR R. OWENS, New York
DARRELL E. ISSA, California          ELEANOR HOLMES NORTON, District of 
KENNY MARCHANT, Texas                    Columbia
PATRICK T. McHENRY, North Carolina   ELIJAH E. CUMMINGS, Maryland
JEAN SCHMIDT, Ohio                   CHRIS VAN HOLLEN, Maryland

                               Ex Officio
                      HENRY A. WAXMAN, California

                     Ron Martinson, Staff Director
                Shannon Meade, Professional Staff Member
                           Alex Cooper, Clerk
          Mark Stephenson, Minority Professional Staff Member


                            C O N T E N T S

                              ----------                              
                                                                   Page
Hearing held on May 16, 2006.....................................     1
Statement of:
    Cowan, William, Deputy Chief Administrative Law Judge, 
      Federal Energy Regulatory Commission, and vice president, 
      Federal Administrative Law Judges Conference; Ronald G. 
      Bernoski, Administrative Law Judge, Social Security 
      Administration, and president, Association of 
      Administrative Law Judges; R. Anthony McCann, president of 
      the Board of Contract Appeals Judges Association; and 
      Denise N. Slavin, president, National Association of 
      Immigration Judges.........................................    20
        Bernoski, Ronald G.......................................    30
        Cowan, William...........................................    20
        McCann, R. Anthony.......................................    38
        Slavin, Denise N.........................................    50
    Kichak, Nancy, Associate Director, Division for Strategic 
      Human Resources Policy, Office of Personnel Management.....     5
Letters, statements, etc., submitted for the record by:
    Bernoski, Ronald G., Administrative Law Judge, Social 
      Security Administration, and president, Association of 
      Administrative Law Judges, prepared statement of...........    32
    Cowan, William, Deputy Chief Administrative Law Judge, 
      Federal Energy Regulatory Commission, and vice president, 
      Federal Administrative Law Judges Conference, prepared 
      statement of...............................................    23
    Kichak, Nancy, Associate Director, Division for Strategic 
      Human Resources Policy, Office of Personnel Management, 
      prepared statement of......................................     7
    McCann, R. Anthony, president of the Board of Contract 
      Appeals Judges Association, prepared statement of..........    40
    Porter, Hon. Jon C., a Representative in Congress from the 
      State of Nevada, prepared statement of.....................     3
    Slavin, Denise N., president, National Association of 
      Immigration Judges, prepared statement of..................    52


 FAIR AND BALANCED? THE STATUS OF PAY AND BENEFITS FOR NON-ARTICLE III 
                                 JUDGES

                              ----------                              


                         TUESDAY, MAY 16, 2006

                  House of Representatives,
      Subcommittee on Federal Workforce and Agency 
                                      Organization,
                            Committee on Government Reform,
                                                    Washington, DC.
    The subcommittee met, pursuant to notice, at 2 p.m., in 
room 2247, Rayburn House Office Building, Hon. Jon C. Porter 
(chairman of the subcommittee) presiding.
    Present: Representatives Porter, Davis, Issa and Cummings.
    Staff present: Ron Martinson, staff director; Chad Bungard, 
deputy staff director; Shannon Meade, professional staff 
member; Patrick Jennings, senior counsel; Alex Cooper, 
legislative assistant; Mark Stephenson, minority professional 
staff member; and Teresa Coufal, minority assistant clerk.
    Mr. Porter. Good afternoon, everyone. I would like to bring 
the meeting to order. Can you hear me OK?
    I would like to bring the meeting to order, and I would 
like to thank you all for joining us today.
    The role that judges play in holding our society together 
is extremely important and often underestimated. Today's 
hearing is: Fair and Balanced? The Status of Pay and Benefits 
for Non-Article III Judges. We rely on judges serving in courts 
of law or administrative tribunals to peacefully resolve our 
disputes in an independent manner and according to the rule of 
law.
    When most people think of a Federal judge, the first thing 
that probably comes to their mind is the type of judge in a 
court of law under Article III of the Constitution. However, 
what many people fail to realize is that there is another group 
of Federal judges serving critical functions in the courts 
created outside of Article III and outside of the judicial 
branch. Today, we will be examining the recruitment and 
retention of judges in the executive branch. These judges 
decide the cases which affect the functioning of the government 
and the everyday lives of people across the country, handling 
such cases involving interpretation of complex regulatory 
issues, Social Security disability appeals, and deportation and 
immigration cases. Nothing could be more important to the 
litigants before these tribunals than the right to due process 
and a fair hearing. The role of a judge in the executive branch 
is not easy. That is why it is important to not only recruit 
the best and the brightest lawyers to execute these judicial 
duties, but to retain them.
    I look forward to delving into the issues pertaining to the 
recruitment and retention of these judges, including pay 
compression, the utility of adjusting judicial pay based on 
performance, the Office of Personnel Management's management of 
the Administrative Law Judge [ALJ] Program and retirement 
benefits provided to the ALJs.
    There are over 1,400 ALJs across the government responsible 
for hearing disputes over their agencies' decisions. Most of 
them work at the Social Security Administration, where they 
make judgments on citizen appeals. There are also a number of 
Administrative Judges [AJs], serving as immigration judges and 
Board of Contract Appeals judges. We will hear from their 
representative associations today.
    I would like to thank our witnesses for being here, and I 
look forward to the discussion.
    Now we are going to move right into procedural matters. It 
is customary to have all witnesses take the oath before their 
testimony. So please stand.
    Honorable Bill Cowan, please, are you here?
    Judge Cowan. Here.
    Mr. Porter. Honorable Bernoski.
    Judge Bernoski. Mr. Chairman, yes, sir.
    Mr. Porter. Anthony McCann.
    Judge McCann. Here.
    Mr. Porter. And Denise Slavin.
    Judge Slavin. Here.
    Mr. Porter. And, of course, Nancy is with us today.
    Thank you very much. If you would please all raise your 
right hands.
    [witnesses sworn.]
    Mr. Porter. Let the record reflect the witnesses have 
answered in the affirmative. Please be seated.
    I ask that each of you remember your testimony will be 
approximately 5 minutes, and any further statements you wish to 
make will be included in the record. We will have Members that 
will be coming today, actually, coming and going. There is a 
funeral that is happening in Mississippi, so we are not going 
to have our normal Members here. But, just so you know, Members 
may come and go. So understand that is how the process works.
    Also note that Mr. Issa is here, and we now have a quorum.
    [The prepared statement of Hon. Jon C. Porter follows:]

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    Mr. Porter. We will begin, Nancy Kichak, with your 
presentation. You are the Associate Director for the Division 
for Strategic Human Resources Policy for the Office of 
Personnel Management. Thank you for being here.

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

    Ms. Kichak. You're welcome.
    Mr. Chairman, members of the subcommittee, thank you for 
this opportunity to discuss human resources management of 
Federal administrative law judges and to respond to calls for 
changes in their pay and retirement benefits. For the past 60 
years, ALJs have provided a vital service in the administration 
of Federal programs. We are committed to ensuring the agencies 
can continue to recruit and retain a high caliber of personnel 
while respecting ALJ independence.
    The Administrative Procedure Act created the position of 
ALJ, originally called hearing examiner, to ensure due process 
in Federal agency rulemaking and provide aggrieved parties an 
opportunity for a formal hearing on the record before an 
impartial hearing officer. It also provides for a merit system 
of selection administered by the Office of Personnel Management 
and the statutory protection of the ALJ's decisional 
independence from undue agency influence.
    In order to assure the requirements for a merit selection 
system is met, OPM administers the ALJ examination and 
maintains a register of qualified candidates. Currently, the 
exam is closed while OPM is working to update the exam to 
include abilities identified by ALJs as necessary to perform 
their work.
    Recently, we have filled 140 positions with qualified 
candidates from the existing register, demonstrating there is 
no recruitment problem for this profession. When the new exam 
is completed, applicants will use state-of-the-art technology 
to apply online.
    Until recently, members of the SES and ALJs have had access 
to the same pay cap. However, Congress enacted legislation in 
late 2003 that gave SES access to higher pay, provided they are 
covered by performance appraisal systems that are certified by 
OPM and OMB. Understandably, ALJs would like access to the 
increased level of pay. However, they fail to credit the 
additional requirements placed on members of the SES.
    At this time pay levels of ALJs are not creating a 
retention problem. A total of only 12 ALJs have resigned over 
the last 4 years.
    There is no similarity in responsibilities or 
qualifications of ALJs and SES indicating their pay should be 
directly linked. A more appropriate comparison is to employees 
in like positions with similar duties and responsibilities.
    For example, judges of the Supreme Court, U.S. Court of 
Appeals and U.S. District Court indeed have higher pay than for 
ALJs. However, bankruptcy judges and magistrates earn less than 
the cap salary of ALJs.
    This administration believes that higher pay levels must be 
justified by the scope of duties and coverage by a performance 
management system that is designed to maintain the independence 
of the administrative judiciary.
    Groups representing ALJs have suggested that OPM establish 
a special office to deal with ALJ issues. Director Springer is 
personally committed to seeing that ALJ issues are 
appropriately addressed. OPM's General Counsel has been serving 
as the initial contact for ALJ issues, with support from 
additional OPM staff. If at any time the Director determines 
this arrangement is not effective, she will make other 
arrangements.
    The Administrative Law Judges Retirement Act of 2005, 
introduced by Representative Wynn, liberalizes eligibility 
requirements for retirement while increasing the annuity 
computations. Other special retirement programs with enhanced 
benefits such as for law enforcement officers and firefighters 
are based upon the human capital management issues resulting 
from the physical demands of the specific position.
    ALJs retire on average at age 70 with 32 years of service, 
demonstrating an ability to work a full career. Thus, we 
believe that the existing retirement provisions applicable to 
ALJs are appropriate.
    We are committed to ensuring the Federal Government can 
continue to recruit and retain the high caliber of personnel it 
has come to expect in ALJ positions. We are improving the 
recruitment process. But we believe current pay and retirement 
provisions are enabling the Federal Government to recruit and 
retain a high quality ALJ work force.
    This concludes my statement. I would be glad to take any 
questions.
    Mr. Porter. Thank you very much. We appreciate the 
testimony.
    [The prepared statement of Ms. Kichak follows:]

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    Mr. Porter. Chairman Davis.
    Mr. Davis. Thank you, Mr. Chairman.
    Thank you for your testimony.
    Unfortunately, I have to get over to the floor where I have 
to manage a couple of bills on behalf of the committee, but I 
want to take the opportunity to wish Chairman Porter a happy 
birthday.
    Mr. Porter. Twenty-one.
    Mr. Davis. Times a factor.
    But I am not going to say how old he is, but I will say 
that I think the Las Vegas climate is preserving him well, and 
I appreciate his leadership on this subcommittee and his 
friendship.
    I want to thank OPM and the representatives and the judges 
for appearing here today. How we recruit, we retain and pay 
non-Article III judges and ALJs is an important issue that 
deserves careful, careful consideration.
    These judges decide disputes that cross a range of subjects 
from Social Security disability cases to cases involving 
complex questions about regulatory tax and immigration law. All 
of these are, generally speaking, administrative cases which 
are not as visible as the headline court cases. Decisions of 
the judges involved are of critical importance to the 
litigants, the individuals seeking disability benefits or the 
person who is in a tax dispute with the IRS; and because of the 
critical importance of these cases it is important that the 
government provides a competitive salary and a competitive 
benefits package to recruit and to retain the judges that 
decide them.
    The structure of pay and benefits for non-Article III 
judges and, more specifically, ALJs is very different from what 
it once was. But, as the 20th century philosopher Yogi Berra 
once said, ``the future ain't what it used to be.'' Today's 
ALJs are increasingly facing pay compression. This means that 
many ALJs are being paid in a narrow range at or near the pay 
cap for their occupation.
    This seems to be a persistent issue. I am looking forward 
to learning more about the issue and trying to resolve it. Once 
again, I want to thank you for coming today to help us 
understand the issues facing the non-Article III judges; and I 
appreciate it very much.
    I know the committee staff has a lot of questions, Mr. 
Chairman. I will move through you, but I want to just be here, 
show my support for what you're doing and hope we can move to 
some kind of a resolution.
    Mr. Porter. Thank you, Mr. Chairman. I appreciate your 
being here and your questions and your comments.
    I do have a couple of questions regarding OPM. Does OPM 
agree that a very large number of judges are at or near the 
total pay cap?
    Ms. Kichak. Yes, we do.
    Mr. Porter. And if that is the case, does OPM consider that 
to be a problem?
    Ms. Kichak. OPM does not consider that to be a problem. Pay 
caps--whenever there is a pay cap, folks cluster at that pay 
cap. That's true when you set the pay caps for SES. When you 
have a pay cap for ALJs, they cluster there. In our general 
schedule, folks cluster at the step 10. In other words, 
particularly with ALJs that work long careers, eventually they 
work through the ALJ pay range and they get to the top; and 
whatever that cap is, that is where they are.
    Mr. Porter. Does the compression cause a recruitment or 
retention problem?
    Ms. Kichak. It does not. We have been able to fill every 
position that has been presented to us from the existing 
register.
    We are getting ready to introduce a new exam fairly soon. 
We have had a lot of interest exhibited through calls and 
comments in that exam.
    We think that the newest register will offer the wealth of 
candidates that the existing register does.
    Mr. Porter. In your opening comment, you mentioned there is 
approximately 1,400 or so ALJs, right----
    Ms. Kichak. Right.
    Mr. Porter [continuing]. In 26 departments and agencies. 
But there has only been 12 that have retired in 4 years, is 
that correct?
    Ms. Kichak. Twelve who have resigned. There have been more 
retirements.
    Mr. Porter. And it may have been in your testimony or in 
your backup, but do you recall why the 12 have resigned?
    Ms. Kichak. No, our records don't show that.
    Mr. Porter. The specific reason?
    Ms. Kichak. The 12 resignations out of 1,400 folks is not a 
huge number.
    Mr. Porter. What would you say the average is for 
resignations in the Federal employee?
    Ms. Kichak. I think we have what we call a turnover rate of 
around 6 percent in the Federal Government. So 6 percent of 
1,400 would be more than----
    Mr. Porter. Six percent a year.
    Ms. Kichak. That's right; and the number I quoted you was 
12 over 4 years, or 4 per year--3 per year.
    Mr. Porter. As far as your testimony, you stated that 
higher pay levels for ALJs must be accompanied by the 
development of robust performance management systems; and you 
cite the Office of Inspector General as an example of OPM 
having substantial experience with performance appraisals and 
organizations that have responsibility for independent review 
of agency actions. Let's face it. Judicial functions are much 
different from that of the IG, is that correct?
    Ms. Kichak. Right.
    Mr. Porter. What experience does OPM have with performance 
appraisals for executive branch judges or hearing examiners?
    Ms. Kichak. We do not have experience with that. This is a 
new area for us. But we think our experience with Inspector 
Generals is important. Yes, their actual jobs are different, 
but Inspector Generals pride themselves on their independence 
also. And yet, in their structure, which is like the ALJ 
structure where you have offices with senior Inspector Generals 
and then you have staff, they have been able to develop 
performance appraisal systems where they are--their performance 
is evaluated by independent folks, not by the agency head.
    We think that opportunity exists in the ALJ community, 
because most ALJs are in offices where the ALJ is not the 
sole--is not by themselves. They are in a management structure 
in which there can be performance oversight by other ALJs and 
maintain the independence.
    Mr. Porter. The OPM's position is that ALJs should receive 
no pay compression relief unless such a pay increase was 
accompanied by a robust performance management system. Is that 
correct?
    Ms. Kichak. We think the robust performance management 
system is critical, yes.
    Mr. Porter. And what are OPM's special plans to revitalize 
the ALJ register?
    Ms. Kichak. We have proposed regulations and we have 
proposed new qualification standards. Those proposals were open 
for 60 days of public comment. We are in the process of 
reviewing those comments now, and we are in the process of 
modernizing the exam and taking account of things we have 
learned from the ALJ community that--about things that are 
important to examine candidates on.
    So as soon as we are done reviewing and commenting--
reviewing those comments, we will announce the final--the 
regulations and procedures, we will open a new exam and develop 
a new register.
    Mr. Porter. I think that is it for today. There will be 
additional written questions for followup, and we appreciate 
your testimony.
    Ms. Kichak. Thank you. We will be glad to answer them. 
Thank you so much.
    Mr. Porter. Also note that all Members will have 5 
legislative days to submit written statements and questions for 
the hearing record. Answers to written questions provided by 
the witnesses also will be included in the record.
    I also acknowledge all other materials referred to by 
Members and the witnesses may be included in the hearing 
record. All Members will be permitted to revise and extend 
their remarks.
    I would like now to welcome our second panel. We will hear 
from the Honorable William Cowan, the Honorable Ronald 
Bernoski, the Honorable Anthony McCann and the Honorable Denise 
Slavin.
    Let's begin with Judge Cowan, who is the Deputy Chief 
Administrative Law Judge with the Federal Energy Regulatory 
Commission and is vice president for the Federal Administrative 
Law Judges Conference. Welcome, Judge.

 STATEMENTS OF WILLIAM COWAN, DEPUTY CHIEF ADMINISTRATIVE LAW 
     JUDGE, FEDERAL ENERGY REGULATORY COMMISSION, AND VICE 
PRESIDENT, FEDERAL ADMINISTRATIVE LAW JUDGES CONFERENCE; RONALD 
    G. BERNOSKI, ADMINISTRATIVE LAW JUDGE, SOCIAL SECURITY 
 ADMINISTRATION, AND PRESIDENT, ASSOCIATION OF ADMINISTRATIVE 
   LAW JUDGES; R. ANTHONY McCANN, PRESIDENT OF THE BOARD OF 
  CONTRACT APPEALS JUDGES ASSOCIATION; AND DENISE N. SLAVIN, 
     PRESIDENT, NATIONAL ASSOCIATION OF IMMIGRATION JUDGES

                   STATEMENT OF WILLIAM COWAN

    Judge Cowan. Thank you very much, Mr. Chairman and 
honorable members of the committee, members of the staff. On 
behalf of the Federal Administrative Law Judge community, I 
thank you for this opportunity to discuss a very significant 
issue for us and that is compression of the pay schedule for 
the corps of administrative law judges.
    I have been a U.S. Administrative Law Judge for a little 
over 9 years, and I live in northern Virginia.
    Sixty years ago, the Congress enacted the Administrative 
Procedure Act, which provided for the independent adjudication 
of agency administrative hearings by presiding officers who 
later became known as Administrative Law Judges. To serve in 
this function well, the ALJs must be chosen from the best legal 
minds the Federal Government and the private bar have to offer. 
The Federal Government and the American people have a great 
stake in the process.
    Unfortunately, over the past few years, ALJ compensation 
has not kept pace with traditional milestones, resulting in 
compression of the pay schedule that actually threatens to 
weaken the administrative adjudicatory process.
    Pay compression, as has been discussed previously today, 
results from a statutory limitation of the pay grade. Last 
year, as a result of this compression, most ALJs received only 
a 1.9 percent increase, while most of the Federal work force 
received a 3.44 percent increase, including locality pay.
    Most ALJs at level AL-3F, AL-2 and AL-1 now receive exactly 
the same rate of pay, so there is no recognition through 
compensation for greater experience, length of service, 
management responsibilities. Nor is there any financial 
incentive for a judge to take on the administrative 
responsibilities of a Chief Judge or Deputy Chief Judge.
    While this is unfair to sitting ALJs, we are also very 
concerned that continuing pay compression will dilute the 
quality of ALJ applicants and make the position unattractive to 
senior agency counsel or SES attorneys that historically formed 
the natural candidate base for ALJ positions. They are no 
longer interested. A GS-15 step 10 senior attorney, for 
example, already makes 25 percent more than a starting ALJ.
    There was a lot of talk earlier today about everybody being 
at a relatively healthy level of pay. The missing ingredient 
there was the $95,000 starting salary for ALJs. It is simply 
not competitive in this day and age.
    Agencies deserve to have the best and the brightest ALJs to 
adjudicate the important cases that they get from their 
agencies. Pay dilution will beget quality dilution. You get 
what you pay for. If this problem continues, the ALJ program 
will end up bottom feeding from a pool of marginal perspective 
candidates instead of attracting the best and brightest 
individuals.
    I know the chairman of my agency wrote to the President a 
number of years ago complaining about the quality of the 
applicant pool. The situation has gotten even worse since then.
    Now OPM recognizes the problem but has linked consideration 
of a remedy to establishment of a pay-for-performance regime. 
However, the APA itself and OPM's own regulations prohibit 
grading of the performance of ALJs and with good reason. ALJ's 
need judicial independence to protect the integrity and the 
legitimacy of the agency hearing process and the rights of 
claimants and litigants in agency cases.
    OPM seems not to understand the very fundamental principle 
that an agency rating and rewards system for ALJs would be 
inconsistent with a preservation of an independent 
administrative judiciary and, more important, even the 
perception of objectivity and fairness that is so important to 
claimants and litigants. OPM has not suggested to us to date 
how its policy preferences can be reconciled with the need to 
maintain judicial independence, which is the hallmark of a fair 
and balanced process.
    We have communicated our thoughts to OPM as to some 
concepts and existing programs that might help bridge this gap. 
At bottom, however, we don't believe that relief from the very 
important pay compression issue needs to be delayed until a way 
can be found to satisfy OPM's performance policy objectives. 
Pay compression is a problem that needs attention now.
    Thank you for this opportunity. That concludes my prepared 
remarks.
    Mr. Porter. Thank you, Judge.
    [The prepared statement of Judge Cowan follows:]

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    Mr. Porter. Next, we have Judge Bernoski, Administrative 
Law Judge, from the Social Security Administration, and 
president of the Association of Administrative Law Judges. 
Welcome.

                STATEMENT OF RONALD G. BERNOSKI

    Judge Bernoski. Thank you. Thank you, Mr. Chairman, and 
thank you for inviting us to testify here today.
    I have been an Administrative Law Judge with the Social 
Security Administration for over 25 years. But, as you 
indicate, I appear here as a witness as president of the 
Association of Administrative Law Judges. We represent about 
1,100 Administrative Law Judges in the Social Security 
Administration and in the Department of Health and Human 
Services.
    As indicated previously, there are about 1,400 
Administrative Law Judges in the Federal Government. However, I 
make the statement today on behalf of all Federal 
Administrative Law Judges. We appear in support of the 
Administrative Law Judges Retirement Act of 2005, which is 
pending before this committee as H.R. 1864. This legislation 
addresses the present inequity for Administrative Law Judges 
and provides a retirement benefit similar to other judicial 
officers in both the State and Federal Governments. This 
legislation is not complex, and it is patterned after existing 
Federal pension law.
    All Administrative Law Judges will receive the same pension 
enhancement as currently received by Federal law enforcement 
officers, congressional staff, and some Article I judicial 
groups. The pension annuity for Civil Service Retirement System 
pension beneficiaries will be enhanced from the current 2 
percent to 2.5 percent, and the Federal Employees Retirement 
System [FERS] beneficiaries annuitants will be enhanced from 
the current 1 percent to 1.7 percent. In exchange, 
Administrative Law Judges will pay an additional 1 percent 
individual contribution for this pension benefit.
    The enhanced pension only applies to the years that the 
individual serves as an Administrative Law Judge in the Federal 
Government.
    This is low-cost legislation; and, on a similar bill, in 
2003, the Congressional Budget Office estimated a 10-year 
direct cost of $14 million, or an average of $1.4 million per 
year.
    The legislation will also provide a short-term reduction in 
the budgets of some agencies. This savings will occur because 
older judges who are paid at a higher rate will retire and be 
replaced by judges who are entering the system at the lower pay 
scales, thereby resulting in a cost savings for the agencies.
    This legislation is needed because Administrative Law 
Judges enter the government later in their professional career. 
This is particularly common for Administrative Law Judges who 
enter the Federal Government from the private practice of law. 
It is not uncommon for an attorney to become an Administrative 
Law Judge at age 50 or older. Because of the qualifying 
requirement of trial practice or legal experience which enables 
an Administrative Law Judge to start hearing cases completely, 
there is no extensive training period. For example, in the last 
class at Social Security, the average age of the judges was 56 
years. This means that these judges must work until age 80 
years or older to earn a Federal pension based on the 
governmentwide average of 30 years of service.
    Now, many States have recognized that judicial officers 
should have enhanced pensions. For example, in the State of 
Nevada, the State provides a pension at age 60 at 75 percent of 
the last year's judicial salary; and the State of Illinois 
provides a pension for 85 percent of salary after 20 years at 
age 60.
    Administrative Law Judges should receive a fair pension for 
the same reason that other judicial employees receive a fair 
pension, and that is to attract highly qualified attorneys to 
the position of Federal Administrative Law Judge.
    In closing, Mr. Chairman, the Federal Administrative Law 
Judges Retirement Act of 2005 provides this remedy. It will 
permit Administrative Law Judges to retire before they reach 
mid-80's and create a younger, more efficient corps of 
Administrative Law Judges.
    As indicated previously, this bill is low cost and will 
result in short-term savings for some agencies. Therefore, Mr. 
Chairman, we ask for your support for this legislation.
    Thank you.
    Mr. Porter. Thank you, Judge.
    I appreciate two of your comments, one, that you brought up 
Nevada, which is always a good thing, and the 50 and older, so 
I fit into that group.
    I do appreciate your testimony.
    Judge Bernoski. On behalf of all Administrative Law Judges, 
we wish you happy birthday.
    Mr. Porter. Thank you, and we should be celebrating in Las 
Vegas right now.
    Judge Bernoski. That is exactly correct.
    [The prepared statement of Judge Bernoski follows:]

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    Mr. Porter. Judge McCann is president of the Board of 
Contract Appeals Judges Association. Judge.

                 STATEMENT OF R. ANTHONY McCANN

    Judge McCann. Thank you. Thank you, Mr. Chairman. Good 
afternoon and thank you very much for this opportunity to 
appear before you.
    Mr. Porter. Excuse me, Judge. We won't hold Bill against 
you, because I see he is here today.
    Bill Bransford--we won't hold Bill against you.
    Judge McCann. We appreciate that very much. We try to keep 
him under control.
    I am president of the Board of Contract Appeals Judges 
Association; and one of the purposes of the Board of Contract 
Appeals Judges Association is to provide appropriate means of 
communication between BCA judges and Congress, the judiciary, 
bar associations, etc.
    I am familiar with the concerns of my Federal judges, and I 
know that I speak for most of them.
    The Boards of Contract Appeals are independent quasi-
judicial tribunals authorized by Congress and established by 
agencies to issue binding decisions resolving contract 
disputes. Congress provided that the Boards of Contract Appeals 
judges would not be subject to direction or control by 
procuring agencies. Our decisions are final agency decisions 
not reviewable by the agency and appealable only to the Court 
of Appeals for the Federal Circuit, much as the decisions of 
the Court of Federal Claims are.
    In this respect, we are quite different from Administrative 
Law Judges. Our primary responsibility is to issue fair and 
independent decisions. It is from this perspective that I 
approach the issue of the pay-for-performance issue.
    Pay for performance provides compensation based on 
individual performance or contribution to agency performance. 
Pay for performance would necessarily affect the process of 
arriving at, the quality of, the timeliness of, or the outcome 
of decisions. It would, in fact, diminish or possibly eliminate 
a judge's independence and his impartiality. Certainly it would 
create doubt in the government contract community as to judges' 
impartiality and independence. Contractors may well hesitate 
before they bring appeals to the Boards of Contract Appeals. 
This could have a significant impact on Boards of Contract 
Appeals and could even impact on a court of claims.
    Pay for performance is simply inconsistent with the judge's 
primary responsibility to issue fair and independent decisions, 
and my attachment goes into this issue in more detail.
    With regard to pay, the Contract Disputes Act of 1978 
established BCA judges pay at grade levels of GS-16, 17 and 18, 
the so-called super grade levels, the precursors to the Senior 
Executive Service. The Federal Employees Comparability Act of 
1990, again, Congress set Boards of Contract Appeal judges pay 
at levels comparable to that of the SES.
    BCA judges perform work at levels comparable to the Court 
of Federal Claims. Contractors can appeal their cases either to 
the Boards of Contract Appeals or to the Court of Federal 
Claims, and the relief granted by each of these tribunals is 
exactly the same. The Court of Federal Claims judges are paid 
at Executive Level 2, the pay cap for the SES. We believe that 
BCA judges should be restored to the pay levels comparable to 
the SES and Court of Federal Claims judges.
    BCAs need to be fully competitive when filling vacancies. 
If the SES is paid more, candidates are more likely to opt for 
the SES. The SES already has a competitive advantage. They can 
receive bonuses, where BCA judges may not receive bonuses for 
the very reason that they must remain independent.
    To keep the rates relatively comparable to the SES, BCA pay 
rates we feel should be set at a percentage of Executive Level 
3, instead of Executive Level 4; and the locality pay cap 
should be set at executive pay level 2 instead of level 3. BCAs 
have separate significant pay compression over the past 15 
years in relation to the general schedule. After the Pay 
Comparability Act of 1990, GS-15 step 10 received 74 percent of 
the pay of the BCA judge. Today, they receive 92 percent of the 
pay of the BCA judge. Soon there may be little, if any, 
monetary reason for a GS-15 to aspire to become a BCA judge.
    If the trend continues, the only way a GS-16 could increase 
his pay is to move to the SES. The relative diminution of pay 
is inappropriate, we feel, and should be rectified.
    Thank you for the opportunity to appear before you.
    Mr. Porter. Thank you very much, Judge. We appreciate your 
testimony.
    [The prepared statement of Judge McCann follows:]

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    Mr. Porter. Finally, we have Judge Slavin, who is the 
president of the National Association of Immigration Judges.

                 STATEMENT OF DENISE N. SLAVIN

    Judge Slavin. Good afternoon and happy birthday, Mr. 
Chairman; good afternoon to the committee members. Thank you 
for inviting the National Association of Immigration Judges to 
testify today.
    The National Association of Immigration Judges is an 
association of immigration judges in the certified collective 
bargaining unit for these judges Nationwide. There is about 200 
of us Nationwide. We have been reaching out to lawmakers 
grappling with this topic for the last few years. Pay 
compression has been an increasing problem in the ranks of the 
Immigration Judge Corps for some time.
    The unique position of immigration judges frequently has 
been overlooked because we comprise a relatively small body of 
specialized administrative judges within the Department of 
Justice. Immigration Court proceedings are a strange hybrid of 
administrative civil and criminal law. While we are technically 
an administrative tribunal, we are not governed by the 
Administrative Procedures Act. However, we comprise one of the 
bigger groups of administrative judges within the Federal 
bureaucracy.
    Unlike ALJs, we generally render final agency decisions, 
not mere recommendations. The vast number of our cases are not 
appealed. The subject matter we address daily can have life-or-
death impact on the parties before us, whether it is in the 
context of asylum claims in the United States or whether 
someone's removal would cause exceptional and extremely unusual 
hardship to a U.S. citizen's relative.
    More recently, cases have raised significant national 
security issues and assertions of connections to international 
terrorism or persecution of others. Further, the increased 
spotlight on immigration issues and IJ decisions has been 
brought on by streamlining, a process where the Board of 
Immigration Appeals adopts IJ decisions as the final agency 
decisions, and this highlights the need for a seasoned and 
stable corps of immigration judges.
    We have similar problems to ALJs because of pay 
compression. These include the serious problems of attrition in 
the ranks and salaries disproportionate to those of the 
attorneys and parties who appear before us. Our ranks have been 
more directly affected by pay compression in recent years 
because, increasingly, the department has not been able to fill 
positions as IJs leave, creating a burden on the system and 
sitting IJs. The increased focus on immigration issues in the 
press only highlights the need to recruit and retain a high 
caliber of candidate for the system.
    The immigration judge pay schedule is based on four levels 
of pay, based on increasing years of experience. However, in 
the third of the cities in which the immigration judges sit, 
the pay levels for the two highest positions are the same due 
to pay compression. At present, over 100 judges, about half of 
our corps, are paid identical salaries because of the pay cap 
provisions which limit the amount of locality augmentation that 
we can receive.
    One thing that someone hasn't mentioned is that pay 
compression is aggravated by the fact that, for the same reason 
we are exempted from performance reviews, we cannot receive 
other types of Federal compensation, such as bonuses or awards. 
These types of compensations usually are used to augment the 
salaries of high-level SES or executive schedule employees. 
Historically, immigration judges have been exempted from the 
general Federal Employment Performance Review System by OPM in 
recognition of the quasi-judicial nature of the job and the 
need for both real and perceived decisional independence.
    The NAIJ would be happy to work with the subcommittee to 
change the pay scale, but we cannot envision a system that 
would link pay to performance and still preserve public 
confidence. A new pay system cannot include a pay for 
performance model. Judicial independence is paramount to ensure 
that we maintain public confidence and neutrality and fairness 
of our tribunal, and the mere appearance that quantity based 
measures are applied are worse yet. Financially rewarding would 
severely undermine that confidence.
    Indeed, many immigration judges believe that the isolated 
incidences of immigration judge intemperance that have been 
occasionally criticized by the press have been brought on by 
the Department of Justice's position of case performance goals. 
These goals have dictated rigid guidelines for the immigration 
judges for the timeframe of completion of cases based on the 
type or age of the case. With added emphasis in the last years 
on these goals, we do not have the time in court to exchange 
pleasantries or allow an applicant to take all the time they 
desire for their day in court, and this sometimes makes us 
appear abrupt or curt in order to move cases along.
    It is not difficult to see how this pressure to 
expeditiously move cases through the system might be 
misconstrued and misinterpreted as a lack of courtesy by the 
parties. Yet it is the same press of cases which highlights the 
need for expert and experienced IJs and serves to underscore 
the crucial importance of maintaining a top-quality corps of 
seasoned IJs by addressing pay compression and inequities 
relative to private sector employment.
    The important independent goal of IJs in post September 
11th times and the pay compression from which we suffer demands 
that all positions be addressed in a manner similar to any 
proposal for ALJs or non-Article III judges. The statutory 
language must be clear to ensure the pay scale for IJs is 
appropriately modernized, the compression is alleviated, and it 
would be clearly protected from any link to performance based 
criteria.
    Thank you very much for the opportunity to speak today.
    Mr. Porter. Thank you, Judge. We appreciate your testimony.
    [The prepared statement of Judge Slavin follows:]

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    Mr. Porter. I guess we will start with you, with a couple 
of questions.
    In light of the President's new proposal, at least 
concepts, yesterday, do you see your workload increasing 
substantially with some of the proposals that have been brought 
forward?
    Judge Slavin. I see our workload increasing in two ways. 
One of the ways it makes our workload more difficult is 
immigration law is constantly changing so it is very difficult 
to keep up with those changes and to apply the new 
complexities. Just as case law develops on statutes that are 
passed, new statutes are passed or they are amended; and this 
makes these novel issues basically appear in court almost all 
the time. It is hard to determine whether this would be an 
initial increase in cases before the Immigration Court, and 
especially until some actual language comes out of any 
compromise that would be developed it would be difficult to 
determine.
    Mr. Porter. Before I continue with questions, I would like 
to ask my colleague, Mr. Cummings, if he would like to make any 
comments or an opening statement.
    Mr. Cummings. No, you can proceed Mr. Chairman.
    Mr. Porter. Thank you.
    You had mentioned also, Judge, that the pay of immigration 
judges should be linked to the salaries of bankruptcy judges or 
magistrate judges. How are these judges paid, and why is that 
the best comparison?
    Judge Slavin. Well, it is interesting I did agree with Ms. 
Kichak on this issue. They are paid on a percentage of the pay 
of the Federal court judges. I think her comparison to State 
court judges is totally inappropriate. It is like comparing 
apples and oranges. If you compared, for example, the salaries 
of Federal attorneys to State attorneys, you would see a 
similar discrepancy. But I think we should be paid comparably 
to magistrate judges and bankruptcy judges.
    I would note, however, that those judges and the Federal 
court judges are also pressing for an increase in pay and feel 
that their current system is out of date.
    When I looked at this issue last year, the Senate bill that 
was proposed would have proposed a maximum of $166,000 for the 
magistrate or bankruptcy judges; and if you linked, for 
example, the immigration judge pay at 95 percent of that, it 
would have brought our pay up to $157,000. So I think that the 
type of work we do is more similar to that than the work done 
by management employees or senior level management employees.
    Mr. Porter. It is becoming more and more obvious that we 
have a lot of our senior government officials in different 
areas where--their pay benefits and retirement situations--we 
need to be reviewing a lot of folks that are in the senior 
level, and possibly by an independent commission at some point.
    But, again, I appreciate your comments in answering my 
questions.
    Judge McCann, in your view, are there any pay-for-
performance principles that will be applied to preserve your 
independence and improve the quality of timeliness?
    Judge McCann. Mr. Chairman, I don't see any way to have a 
performance pay or any standards that can be used that would in 
fact preserve our independence or our impartiality. We thought 
about this long and hard and actually tried to but have not 
been able to come up with something that would preserve our 
impartiality.
    Mr. Porter. And, Judge Bernoski, how many ALJs retire each 
year and how many separate without retiring? Do you do any exit 
polling discussion with these folks?
    Judge Bernoski. Off the top of my head, Mr. Chairman, I 
cannot give you an answer to that. I can supplement my 
testimony and try to provide that information to you.
    But I think that probably in the Social Security 
Administration--this is probably a guess--we probably would 
have about--we have 1,100 judges, probably around 30 retire a 
year. I think that is a good ballpark estimate, about 30 a 
year.
    Mr. Porter. And if you could check that for us, I would 
appreciate it.
    Judge Bernoski. Yes, sir I will.
    Mr. Porter. Judge Bernoski, do you see a significant loss 
of experienced and talented judges in the near midterm if we 
don't address these pay concerns; and, if so, what will happen.
    Judge Cowan. Do we anticipate a loss of judges because of 
the pay problem? I think it is a complicated question. The fact 
is that the existing corps of judges came in late in their 
careers, typically, to Administrative Law Judge positions. They 
typically need to stay in largely because they can't afford to 
retire, and I think that links into Judge Bernoski's testimony 
about the need for retirement programs. So you are not going to 
see a lot of midterm people going in and out. There are some, 
but not a lot.
    Mr. Porter. And you need to help me because I don't know 
the answer to this question. You take a--like a State employee 
judge in the State of Nevada, who may well be a part of the 
public employees retirement system in Nevada, and what you are 
saying is they may be there for 10, 15 years and then, at later 
in life, with that experience, then they become a Federal 
judge. And they are not able to combine their benefits. So they 
have to stay longer to make sure that they can maximize the 
retirement benefits.
    Judge Cowan. That is exactly right. I am an example of 
that. I am a retiree in the State of New York. That pension 
plus the Federal pension is not nearly as good as a typical 
long-term Federal pension.
    So that is why people in ALJ positions stay in them. They 
need to stay in them to continue to get the number of years to 
boost up the FERS benefit, basically.
    Mr. Porter. So where is it that they start in salary, 
approximately?
    Judge Bernoski. $95,500 I believe is the existing starting 
pay for ALJs.
    Mr. Porter. To start, you have to have experience for a 
number of years. It is not like they are coming in fresh from 
college in their first job?
    Judge Cowan. No. OPM has an examination. Last examination 
required 7 years of trial experience or similar experience and 
a number of other qualifications that you wouldn't get right 
out of law school, for example. So you are dealing with a 
seasoned corps of people. Typically the kind of people that 
came into ALJ positions were senior-level government employees 
at the GS-15 level that my colleague was talking about earlier 
and I mentioned as well. We are not getting those transfers 
anymore because it is just not lucrative for them. They can 
make more money staying where they are. That is what our 
concern is.
    There is always going to be applicants for a job that pays 
$95,000 a year. The question is, are you getting the right kind 
of people? And we think that these programs need the best and 
the brightest people.
    Mr. Porter. Thank you. That actually concludes my 
questions.
    Mr. Cummings, anything you would like to ask?
    Mr. Cummings. Yes. What is the retirement age for judges--I 
guess it is different--on different levels it is different 
retirement ages. In the State of Maryland, you have to retire 
by 70. But when do you all have to? Do you have a time that you 
have to retire?
    Judge Bernoski. No, there is no mandatory retirement age, 
Mr. Cummings, in the Federal Government.
    Most judges, Administrative Law Judges, that is, retire 
between after 20 years of service and then usually around 30 or 
more, depending on what their age is at that time. We have--I 
was over in Oklahoma City a couple of weeks ago and in that 
office there in the Oklahoma City hearing office of about 13 
judges I think there were 3 that are over 80 years old. One was 
85 or 86 years old. So these people are working well into older 
age and probably, quite frankly, beyond the scope of 
productivity.
    Mr. Cummings. The reason why I ask that question is because 
there was some mention of judges having to work longer because 
of certain circumstances with regard to pay, I guess, and 
pensions. So I assume that part of the reason why some may work 
a little longer than, say, the average is because of pay, is 
that it, or the retirement packages?
    Judge Bernoski. Well, the typical reason why judges work 
older is because, well, first of all, as Judge Cowan indicated, 
their FERS system is really inadequate for the salary level of 
Administrative Law Judges the way the pension is structured, 
but second is because they enter Federal service at much later 
age. Like, for instance, the last class of Social Security 
judges of about a year ago, the average age of those judges was 
a little over 56 years.
    So if you are going to take a governmentwide pension of 30 
years on top of 56, you have 85 years of age before they would 
receive their 30 years of Federal service. And that is 
typically what happens. Our people enter into government 
service probably closer--OPM statement said age 40, but I think 
that is a little bit young. I would say our judges are a little 
bit closer to 50 years old when they enter. We have some 
younger people, but most of them are on the older side, 50 
years or more.
    Mr. Cummings. Judge McCann, you had said that--in answering 
one of the chairman's questions about pay for performance, you 
said that--you mentioned that it might be harmful to 
impartiality. Is that what you said?
    Judge McCann. Yes, I did.
    Mr. Cummings. Can you explain that to me? I am sorry I 
missed you all earlier.
    Judge McCann. Absolutely, Congressman Cummings.
    If you have pay for performance, you would have to have 
certain standards for pay for performance. And that would--if 
you have standards for pay for performance that are at all 
subjective, that would be opening up that performance review to 
political pressure or pressure by the agency to come to some 
conclusion. It would not be impartial.
    If you had absolutely objective standards, you could have 
pay for performance. But we know of no objective standards that 
would possibly apply. So any type of--we come to the conclusion 
that any type of pay for performance necessarily destroys 
impartiality.
    Mr. Cummings. So when it comes to--and then when it comes 
to pay compression, I guess it becomes very--I am sort of 
moving to another subject--kind of difficult to hold on to 
folks and even to get them in the process.
    I know you can get somebody for $95,000. I got that. But as 
far as attracting the better people, that is your major 
concern, is that right, Judge Cowan?
    Judge Cowan. Yes. Absolutely.
    Mr. Cummings. So you just got somebody that comes in at 
$95,000 who is an outstanding jurist or whatever they might be 
doing, could probably make a lot more money doing something 
else----
    Judge Cowan. Yes.
    Mr. Cummings [continuing]. At that point in their career.
    Judge Cowan. What you are going to get are a bunch of 
people with failed law practices or people who just couldn't 
cut it in private industry, that have the requisite number of 
years to qualify for experience. They will submit applications. 
Now, hopefully, OPM will design an examination that will weed a 
lot of those people out. But we are really worried about the 
fact that this compression is going to have a real quality 
effect on the corps of ALJs.
    Mr. Cummings. And have you seen evidence of that? How do 
you all--I am trying to say this in a way where you don't have 
to talk about your colleagues. I mean, do you all have any kind 
of evaluation system short of somebody complaining? Are you 
following me?
    Judge Bernoski. No, we don't. There isn't any evaluation 
system for Administrative Law Judges. It is precluded by the 
Administrative Procedure Act and by Federal statute.
    But, Mr. Cummings, with relation to the OPM statement, 
since the register has been closed, since 1999, OPM has not had 
empirical data as to the quality of applicants that they will 
receive under this current pay cap, quite frankly, because they 
haven't been putting any applicants on the register; they 
haven't been receiving any applicants or administering the 
examination. So it is at best on their part an educated guess; 
and we do not, I think, concur with their conclusion.
    Judge Cowan. If I might supplement upon that, I referred 
earlier in my remarks that the chairman of my agency wrote to 
the President a number of years ago, 3 years ago, complaining 
about the quality of the applicants we were seeing in the OPM 
register. I am with the Federal Energy Regulatory Commission. 
We have very technical, very complex cases. You really need to 
have the right kind of skills to do those kinds of cases. And 
he just wasn't seeing--when we would bring applicants that OPM 
would certify up to the chairman's office and he would say, we 
don't think they can do the job. So it was a real concern. It 
hasn't gotten any better. It's gotten worse, because the pay 
compression is even worse now than it was then.
    Mr. Cummings. Who did you say you work for?
    Judge Cowan. The Federal Energy Regulatory Commission.
    Mr. Cummings. So when it comes to judges in your area, they 
have to have expertise with regard to energy?
    Judge Cowan. They don't necessarily, no. We don't have that 
as a requirement. As far as OPM examination is concerned, all 
judges are equal. A judge in Social Security could conceivably 
be transferred and do our work. In fact, they have done that; 
and some of them work out fine. But others may not work out so 
good. We are really concerned about the general problem.
    Mr. Cummings. I understand that. But you are also concerned 
about, yeah, quality.
    But what I was thinking about is, in Maryland, they just 
had a--there was an article in the Baltimore Sun the other day 
about one of our circuit court judges and how he had to--I 
think they said he spent a whole summer just trying to figure 
out how the Public Service Commission works and with regard to 
energy problems in Maryland, just so that he could be 
knowledgeable of even dealing with a hearing. And I can imagine 
that would get--that could get very, very complicated.
    So if you have someone who is mediocre at best and who may 
not be too quick on the draw with regard to learning the 
subject matter, it is kind of hard, I guess, to have a truly 
fair hearing. Because it takes about, I assume, a certain base 
of knowledge just to be able to even fully appreciate and 
understand the arguments that may be presented. Is that a fair 
statement?
    Judge Cowan. I would agree with that.
    Mr. Cummings. So if whoever is in charge of the judges, say 
like in your agency, ends up with a judge who is clearly not 
qualified to hear those kinds of cases, there is not too much 
you can do it about it, huh?
    Judge Cowan. No, we are required basically to assign cases 
on a rotational basis. So as they come in they get assigned to 
the next available judge to the extent practicable.
    Mr. Cummings. What is your solution to this problem of 
compression? What do you see as a solution?
    Judge Cowan. The solution would be--I would like to see a 
fresh look at the whole structure, but the immediate solution 
would be to establish a cap at a higher level. That is a 
stopgap measure.
    But I think the American public deserves a fresh look at 
compensation for judges across the board, non-Article III 
judges, which is what this committee is looking at. I think it 
is a wonderful idea to do that, and we are appreciative of it.
    Mr. Cummings. Let me say one last thing. I agree with you. 
I am a lawyer. I practiced for 20-plus years, and for the life 
of me, I could not, I never could, understand why judges were 
not paid better. I mean, most of the judges I knew were very 
strong people in the legal profession. They could go out and 
make more money than what they were making on the bench. And 
then people would scream and holler if any mention was made of 
them making a decent salary.
    It seems to me we have to protect all branches of our 
government, and I think the judicial branch plays as 
significant a role as the legislative and executive. Hopefully 
we can take a look at this.
    I agree with you on quality. To have justice, in order to 
make decent decisions, you have to start with a base of 
knowledge. If you don't have that base, you have a problem. I 
don't consider that justice.
    Thank you all very much.
    Mr. Porter. Thank you. I just have one additional question.
    Entry level approximately $95,000, is that based upon what 
is being paid, or is that where it begins? I would assume that 
a lot of folks come in from other agencies and may be above the 
$95,000. If they come in at $110,000, they start at $110,000?
    Judge Cowan. If there is an intergovernmental transfer, 
they transfer laterally at their highest level.
    But there are other people that come from other 
jurisdictions or the private sector, and they start at the 
lowest level.
    Mr. Porter. Your points are well taken. I concur with Mr. 
Cummings that this is an important hearing, and we appreciate 
hearing your perspectives.
    As I said earlier, I think there are some other executive 
levels in the government, senior government officials, that we 
need to take a look at also.
    Thank you very much for your testimony. We appreciate you 
being here today. And with that, we will adjourn the meeting.
    [Whereupon, at 3:03 p.m., the subcommittee was adjourned.]
    [Additional information submitted for the hearing record 
follows:]

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