Mar 7, 2018

No Further Pretense

     A message from Nancy Berryhill to Social Security employees:
From: ^Internal Communications 
Sent: Wednesday, March 07, 2018 3:20 PM 
Subject: A Message from Nancy Berryhill A Message To All SSA Employees
Subject: A Message from Nancy Berryhill
On January 20, 2017, I was honored to become the Acting Commissioner of the Social Security Administration. Starting with Social Security 41 years ago as a summer aide, the vital mission of this agency has always fueled my passion for public service. Yesterday, the Government Accountability Office, who is responsible for monitoring the timelines for vacancies in certain Federal government positions, determined that a limitation of 300 days applied to the Acting Commissioner. Out of an abundance of caution, the agency had already taken steps in November 2017 to ensure that agency operations continue uninterrupted. 
Moving forward, I will continue to lead the agency from my position of record, Deputy Commissioner of Operations. Throughout my career, I have learned that position titles come and go, but what truly matters is the people we serve every day. Beyond the change in title, there will be no impact in our service to the American public. Now, as always, I look forward to continuing to focus on the mission of the agency. ...
     What steps were those that Social Security took in November 2017?


  1. I believe the steps referred to succession planning that led to a December 23, 2016, memorandum issued by President Obama establishing an order of succession for the performance of the functions and duties of the office of the Commissioner of Social Security. 81 Fed. Reg. 96,337 (Dec. 30, 2016)

  2. In comparing the authority of the commissioner (42 USC § 902(a)) and deputy commissioner (42 USC § 902(b)) it appears deputy commissioners do not have rule-making authority.


    Interesting. But doesn't 81 Fed. Reg. 96337 say in section 2, the deputy commissioner for operations shall not act as Commissioner? That seems like exactly the opposite of what Berryhill is doing.

  3. Under what legal authority does the Deputy Commissioner for Operations have the power to declare herself the “head of the agency?”

    The December 23, 2016 Presidential memorandum issued under the previous administration is still legally valid, and it states that DCBFQM will be the next Acting Commissioner. After that, it’s DCS, then the Regional Commissioner for Atlanta, and so on. Alternatively, the White House has the ability under the Vacancies Act to appoint someone else to the position for a period of 210 day’s. This isn’t hard, folks!

  4. @4:35 -
    I believe Section 2 references someone who may be an "Acting" Deputy Commissioner. So someone who is only an Acting Deputy or Regional Commissioner cannot be the Acting Commissioner, but someone who is a duly appointed Deputy or Regional Commissioner would have that authority under this Order of Succession.

  5. @5:35-
    I suppose it's not hard if you ignore the plain language of the Vacancies Act. The Act generally limits the period of time that a Presidentially-appointed position may be filled with an acting official. 5 U.S.C. § 3346(a)(1), 5 U.S.C. § 3349a(b). So, you can't piggy-back acting official upon acting official to skirt the intent of the Act.

  6. For decades the democratic party won elections by pledging to defend social security and warning that republicans intended to dismantle it. This strategy was successful for decades. Where in the hell is the democratic party and why isn't it making this administration and the republican congress own responsibility for the attempt to destroy this agency? Are the democrats afraid of winning? Donald Trump will take over the rust belt based on tariffs that will have little effect on common people's lives while he gets away with destroying their social security and medicare! I again ask: where in the hell is the democratic party?

  7. It really isn't hard. The Vacancy Act has it's noted role in determining who can lead and use the title Commissioner and has its 300 day deadlines. Berryhill has blown past that deadline due to administration inaction. So no more Commissioner. The 2016 succession memo now applies here because the Vacancy Act has declared that the agency no longer has a person validly in the roll of (fillin the blank) Commissioner. Per Sec 1, DCO isn't the Commissioner and is not calling herself one with any modifiers. But that memo says that whoever occupies the job of DCO can act and perform the functions and duties of the Commissioner. No where does it name her as acting or almost or could have been Commissioner. So it's not piggy backing nor using the title. It's now the person who holds that job managing the agency under this memo under their official title of DCO. I'm going to guess the lawyers have conferred and set up a list of things that she can and can't (or perhaps should refrain from) doing regarding things done under the authority of "the Commissioner" that are done under the authority of this memo. Seriously, does anyone believe that what the agency should do if the 300 day limit was reached wasn't known, staffed out and relevant parties consulted with in advance?

    Quite honestly, this and the prior similar memos were put in place because of fear of a loss of personnel due to things like terrorism and not due to political inaction.

  8. I don't understand how federal lawsuits or anything else appeal related can continue without a commissioner.

    There is literally NOONE to hold anyone accountable.

    Add to the fact that ALJ's might be found unconstitutional.

    Social security is a joke. It's been proven time and time again that they just do what they want irrespective of the laws and rules.

    Nancy Berryhill can no longer be a commissioner? Fine, she will now make herself the deputy commissioner.. Lmao.