Other job as active duty lawyer for Army hampered work, ruling says

By ANN HARDIE
The Atlanta Journal-Constitution
Published on: 06/21/08

For three years, Kelly S. Jennings ruled on disability claims for the Social Security Administration while simultaneously serving as an active-duty lawyer for the Army. This week, a ruling determined the Atlanta administrative law judge can be removed from his civilian job for double-dipping. Social Security has also filed papers to recover more than $309,000 in back pay and interest from Jennings.

By dividing his time between jobs, Jennings could not give Social Security his full attention, which in turn contributed to the nation's mountainous backlog of disability claims, wrote William N. Cates, the administrative law judge who heard the case.

Jennings worked in Social Security's Atlanta North office, known as the agency's "backlog capital" of the country. With an average wait of 838 days, the office in May ranked as the slowest in the nation in resolving the appeals of people who say they are too sick or injured to work.

Jennings, who said he made more than $300,000 a year working for both Social Security and the Army, acted "purely for personal gain," Cates wrote. "Judge Jennings' dual employment and the ramifications thereof warrant his removal."

In an interview Thursday, Jennings said he was "shocked" by Cates' decision. He said he was among the most productive judges in his office. "It wasn't like I was on the golf course," Jennings said. "I took it upon myself to hold hearings in an effort to reduce the backlog and render decisions to give individuals the benefits they had worked for their entire life. For that, I am being fired."

More than 758,000 people seeking disability benefits nationwide, including 12,000 in the Atlanta North office, are waiting for administrative law judges to hear their cases.

They are entitled to a hearing if Social Security previously has denied their requests for disability benefits. The lion's share, statistics show, will prevail at the hearing level.

The health and financial well-being of many of those people will worsen during the long wait. Some will lose their homes, declare bankruptcy, even die.

Trying to reduce the backlog, Social Security recently hired six new administrative law judges for its two Atlanta offices. But last year, the agency filed a claim with the Merit Systems Protection Board, the agency charged with protecting the rights of federal employees, seeking to remove Jennings. Social Security claimed Jennings improperly held two jobs and failed to fully disclose his active-duty status with the Army. Cates, ruling on behalf of the board, agreed. Jennings plans to exhaust his appeals to keep his job.

Social Security officials, citing privacy concerns, will not discuss Jennings' current status. But Jennings said he has been placed on paid administrative leave until a final decision is reached. "We are pleased by the decision," Social Security Commissioner Michael J. Astrue wrote in an e-mail. "The irresponsible conduct of this employee shouldn't tarnish the reputations of our ALJs, who have helped reduce the disability backlog by increasing their productivity by about 10 percent in the past year." Jennings, 55, was appointed an administrative law judge and went to work at the Atlanta North office in 1994.

For the past 25 years, Jennings also served as a commissioned officer in the U.S. Army Reserve. When he retired last month, Jennings held the rank of colonel with the Judge Advocate General's Corps, the Army's legal arm.

Jennings said he performed active military duty for a few months every year that he served as an administrative law judge and received pay from both the Army and Social Security "with no problem."

His current troubles stem from his continuous military duty from January 2003 to December 2005. Jennings did brief tours during that period in the Middle East. But during most of those years, Jennings said, he worked from 6 a.m. to 3 p.m. at Fort McPherson in Hapeville, providing legal advice for the 3rd U.S. Army based in Kuwait. He said he spent the rest of the weekdays and weekends working on Social Security cases both in his Atlanta North office and at home. Jennings said he took military leave when necessary to hold hearings.

Jennings had signed an agreement with Social Security to work weekdays from 8 a.m. to 4:30 p.m. While Jennings acknowledged that he did not adhere to that schedule, he called it "inconceivable" that his higher-ups were not aware of what he was doing. "I would come in the office in a military uniform," he said. "I had a military uniform hanging in my office."

Military regulations would not have precluded Jennings from holding another government job. But a human resources specialist testified that the Social Security Administration does not allow employees to keep working their civilian jobs if they are activated for military duty.

Jennings' immediate supervisor, Verley Spivey, testified that "he had some idea that Judge Jennings may have had some duties at Fort McPherson," but did not know that they were anything other than on an "episodic basis," according to Cates' decision. Spivey referred questions for this story to higher-ups at Social Security, who were not available for comment.

In August 2007, Social Security placed Jennings on paid administrative leave, he said. He is drawing his annual salary of $158,500.

Jennings said his annual Army pay ranged between $140,000 and $155,000 between 2003 and 2005.

"There was never a time I was double-dipping at all," he said. "I fully earned every dime of my salaries."