I Wouldn't Regard This As A Good Sign If I Was Social Security's Attorney

     From an order entered in the United States District Court for the Eastern District of Kentucky:

On September 8, 2016, the Court held a telephone conference to schedule and to prepare for oral argument on the Social Security Administration (SSA)’s motions to dismiss. Ned Pillersdorf, Francis E. Budde, and Kelly Lynn Ward Wallen represented the plaintiffs, with Mr. Pillersdorf speaking for that side. Amanda B. Gilman, John S. Osborne, III, and Laura Ridgell - Boltz represented the SSA, with Ms. Gilman speaking for that side. ...

Although the plaintiffs have brought a number of claims against the SSA, the Court is focused on one at the moment: whether the SSA’s redetermination procedures violated the Due Process Clause. That question involves many smaller — but nevertheless difficult — ones, some of which are listed below. As it tries to figure those question s out, the Court would benefit from further briefing and an oral argument. The parties agreed that an in-person argument would work the best. That argument is set for Wednesday, September 21, 2 2016, at 11:00 a.m., at the United States District Courthouse in Pikeville, Kentucky. The parties will submit further briefing by Friday, September 16, 2016. 

In preparing their briefs and arguments, the parties should keep a few things in mind. First , at this stage, the Court is primarily concerned with the plaintiffs’ argument that the SSA failed to afford them due process. The plaintiffs also argue that the SSA applied its redetermination procedures in a prejudicial way — specifically, by initiating those procedures many years too late . To decide that claim, however, the Court first needs to know whether the procedures are constitutional to begin with. 

Second , the Court will construe the parties’ new briefs as cross - motions for summary judgment. The parties agree that the due - process issue depends largely on questions of law that can be resolved through briefing and argument. Plus, the SSA has attached affidavits to its motions to dismiss — when a party has presented such “matters outside the pleadings,” Rule 12 requires the Court to t reat the motion to dismiss as a motion for summary judgment. Fed. R. Civ. P. 12(d). This way, the Court can decide the due - process issue once and for all .

Third, and finally, the Court would appreciate briefs addressing the specific questions that are currently troubling it. As promised at the conference, those questions are listed here:

(1) How exactly, under 42 U.S.C. § 405(u), does the redetermination process work?

a. Where, in the text of the statute, does Congress create the “evidentiary rule” that when the Office of the Inspector General (OIG) finds fraud, parties cannot challenge the finding ?

b. Does Congress even have the power to dictate what evidence an administrative law judge may and may not consider? 

c. Assuming that Congress has that power — and used it in § 405(u) — does the Due Process Clause nevertheless require that parties get a chance to challenge agency evidentiary decisions?

d. What parts of the redetermination process are judicially reviewable?

(2) How did the redetermination process work in the plaintiffs’ cases specifically ?

a. Did the SSA follow §405(u) ?

b. When the OIG alerted the SSA about the fraud, did the SSA take as given that fraud had occurred in every case Eric Conn touched, or did it decide for itself whether fraud occurred in each case?

(3) Assuming that the SSA followed §405 (u), and assuming that under that section the OIG ’s fraud findings are unchallengeable , does the redetermination process violate Goldberg v. Kelly, 397 U.S. 254 (1970)?

a. Did the plaintiffs get a chance to challenge the OIG finding?

b. If they did not, why don’t they deserve one?

(4) If the redetermination process violated the plaintiffs’ due-process rights, what is the proper remedy?

This list is not necessarily exhaustive. Other issues will certainly arise, and the Court will be grateful for the parties’ efforts to anticipate and address them. At the end of the day, however, the problem on the Court’s mind is whether the redetermination process afforded the plaintiffs due process, and if not, what to do about it.