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Oct 1, 2010

The Merits Of That Binder And Binder Lawsuit

I have posted on the separate Social Security Perspectives blog the complaint brought against Social Security by Binder and Binder, a large entity which represents Social Security claimants. Binder and Binder may include a law firm but it is primarily something other than a law firm. Whatever it is, it is large and advertises heavily on cable television. Binder and Binder is seeking an order that would force Social Security to allow its employees to appear before Administrative Law Judges (ALJs) by video hookup.

I hope this lawsuit fails. The idea that someone could represent a Social Security claimant without ever once meeting that claimant in person is abhorrent to me. The notion that Social Security would be compelled to allow such a thing is almost inconceivable to me. However, my feelings about the result sought by Binder and Binder are irrelevant to the question of whether this lawsuit has legal merit.

I will try not to belabor the legal questions presented by this lawsuit. My opinion is that this lawsuit lacks merit. A fundamental question in administrative law is whether a decision by an administrative agency may be reviewed by the courts. If every decision could be reviewed, the federal courts would be overwhelmed and federal agencies would be unable to function. There are rules about what can and cannot be reviewed. This strikes me as a clear example of a non-reviewable decision. To give you an idea of how serious a problem this is, one Court of Appeals has held that even when Social Security bars a person from representing claimants before the agency, thus taking away that person's livelihood, that there is no right to judicial review. Binder and Binder tries to get around this problem by invoking mandamus. The writ of mandamus is beloved by American attorneys because it was at the center of that most famous constitutional decision, Marbury v. Madison, which established that the Supreme Court could declare an Act of Congress unconstitutional. Strictly speaking, the writ of mandamus no longer exists. It was abolished by Rule 81(b) of the Federal Rules of Civil Procedure but this is a quibble since the same sort of relief is still available. It just lacks a venerable name or, indeed, any name. There is a long history of attempts to use mandamus to obtain judicial review of federal agency action. It virtually always fails. In fact, a complaint alleging only mandamus jurisdiction is usually a sign of a weak lawsuit that will be quickly dismissed. I and others have used mandamus successfully when Social Security had a clear duty to act but completely failed to act but that is not the situation here. Social Security has acted. Binder and Binder does not agree with that action.

Binder and Binder tries to buttress its argument by alleging that it spent money in reliance upon its interpretation of agency regulations. If anything, this hurts Binder and Binder's case. Leaving aside the question of whether Binder and Binder's interpretation is the only way in which the regulations can be read and leaving aside the question of whether there should be any relief even if this is the case, this does not seem to me to come close to justifying the injunctive relief sought. Monetary damages would seem an adequate remedy for what is, essentially, a claim based upon detrimental reliance. It is a fundamental legal principle that a party cannot get a form of equitable relief such as an injunction if legal damages -- as in money -- will suffice to make the party whole. That is exactly the situation here.

I note that Binder and Binder's attorney does not list administrative law as a field in which he practices.

Update: No doubt the 2005 decision of the Second Circuit Court of Appeals in Binder & Binder, P.C. v. Barnhart, 399 F.3d 128, will be cited as support for finding jurisdiction in the case at hand. In that case, Social Security paid an attorney fee and then demanded it back because the client's debts had been discharged in bankruptcy. The Court used mandamus as the basis for jurisdiction to review the decision. There is loose language in that decision suggesting that mandamus is always available if there is not some other basis for reviewing the actions of a federal agency. I said above that trying to use mandamus to obtain review of federal agency actions virtually always fails. This old Binder case is an example of why I added the qualifier "virtually." On rare occasions it works. Using mandamus to obtain review of Social Security's interpretation of the bankruptcy laws is vastly different than using mandamus to obtain review of Social Security's interpretation of its own procedural regulations.

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