From the
Lexington, KY Herald-Leader:
An Eastern Kentucky lawyer who has represented hundreds of
people in Social Security disability cases schemed with a federal judge
to commit wholesale fraud, two whistle blowers charge in a civil
complaint.
Eric C. Conn received millions of dollars from the
government for handling disability claims that the administrative law
judge improperly approved, the complaint alleges.
Many people
were approved for lifetime disability payments they didn't deserve,
which could eventually cost the federal government tens of millions of
dollars, said Benjamin J. Vernia, one of the attorneys who filed the
claim. ...
The judge named in the complaint, David B. Daugherty, improperly
manipulated a docketing system to get control of Conn's cases, the
lawsuit alleges.
In 2010, Daugherty approved 99.7 percent of the claims before him, when the national average was 62 percent, the complaint said. ...
A court motion in the case indicates federal authorities are conducting a criminal investigation in the case.
Conn issued a statement Tuesday saying he had not seen the complaint and could not comment on it until he had.
"I
can certainly say that I have always tried to represent my clients in
the best and most appropriate way possible, within all the laws and
rules," Conn said in the prepared statement. ...
The complaint against Conn was filed under the federal False Claims Act,
under which whistle blowers can get a portion of the money recovered in
cases in which the federal government is defrauded. ...
Vernia and Lexington attorneys Mark A. Wohlander, a former assistant
federal prosecutor; Brian A. Ritchie; and William Nicholas Wallingford
filed the lawsuit for two whistleblowers in October 2011.
The case
was sealed until Tuesday, however. That was because the federal
government had asked for several stays throughout 2012 as it considered
whether to join the case.
The government ultimately said it could
not decide whether to intervene by a deadline Thapar had set. Conn said
in his statement that it is noteworthy the government decided not to
take over the case.
The whistle blowers in the case are Jennifer
Griffith and Sarah Carver. Both worked in the Huntington, W.Va., office
of the Social Security Administration, which handled appeals in
disability cases from Eastern Kentucky, according to the complaint.
This type of lawsuit is known as a qui tam action. Qui tam actions have at times
been spectacularly successful. In this case, I doubt that's going to happen. Daugherty was approving almost all disability claims that came before him. Conn wasn't representing all those claimants. Other lawyers were representing many of these claimants. Some claimants were unrepresented. Regardless, almost all of these claims were approved. Were all those other attorneys and all those unrepresented claimnats bribing Daugherty? That makes no sense. If it didn't take a bribe to get Daugherty to approve a disability claim, why would Conn bribe him? Would Conn bribe Daugherty to get him to manipulate the docketing system? That's way too visible. This whole case seems awfully improbable to me. Mere suspicions aren't enough to win a qui tam case. You have to have facts. Social Security didn't find enough merit in the case to get involved. Qui tam actions are
much less likely to succeed if the government decides to not get involved.
Even assuming that the ALJ paid the same rate to other attorneys as he did Mr. Conn (which is not evidence we have at the moment), it does not address the contention that Mr. Conn's cases were intentionally being docketed with this ALJ who paid essentially 100 percent of cases.
ReplyDeleteThat being said, if your going to have a bribery/kickback scheme--don't make it too obvious--99.7 percent is ridiculous.
And you have questioned the invisible judge program and why it came about??
ReplyDeleteI cannot believe that two whistleblowers are/were SSA employees. They seem to know very little about the appellate process and seem to think SSA is still part of HHS and think ALJs hold up to 250 hearings per year. Something here does not add up.
ReplyDeleteIt is conceivable that an attorney, aware of the high allowance rate of a particualar judge, might make arrangements to ensure that all or most of his cases were handled by the particular judge, thus guaranteeing a payoff for an inordinate percentage of his cases, with appropriate compensation, if you get my drift.
ReplyDelete250 hearings a year might have been more typical in the past, but in recent years, hearings held would be closer to 400 to 500.
ReplyDeleteCharles, most of the cases Daugherty decided would have been for Conn. SSA paid $3.8 million in attorney fees to Conn in 2010. His offices are in the Huntington ODAR service area, meaning his clients' hearings would have been before that office (especially since he had an ALJ who would pay everything). All of his cases were handled by Daugherty. Assuming an average attorney fee of $4000, he would have had 950 favorable cases. Daugherty decided 1284 cases in 2010. Therefore, Conn's cases would equate to 74% of Daugherty's workload. The calculations are obviously rough estimates based on an assumption of the average fee, but are probably fairly close to correct.
ReplyDelete10:04 AM, you're dead wrong on the facts. Not all Conn's cases were handled by Daugherty. He had cases before every other Huntington ALJ in 2010. Also, the $4000 average attorney's fee is a high estimate. Most of the cases Daugherty decided were Conn cases, but you can probably say the same for any other Huntington judge during the same time period because of the sheer volume Conn pulled at that time. It's elementary-level math.
ReplyDelete1:37 PM, you must meet 12.05(c). Of course we have evidence Daugherty paid the same rate to all attorneys - the 99.7% was his rate for ALL cases, not just Conn's.
ReplyDeleteAs for the "contention" that Conn's cases were being intentionally docketed as a result of a kickback scheme, where's the proof? Preponderance of the evidence, not conceivability, is the standard in civil cases. All talk.