I've been giving thought to the recent Supreme Court opinion in Lucia v. SEC, which held that Administrative Law Judges (ALJs) at the Securities and Exchange Commission were unconstitutionally appointed. I keep coming back to a couple of questions.
- Why does Social Security want to keep a record of the cases pending administratively in which the claimant has objected to the ALJ on Lucia grounds?
- Why hasn't Social Security tried to limit the scope of its potential Lucia problem by having the Acting Commissioner appoint each of its ALJs and ratifying their actions?
What can the agency do with records of Lucia objections? The only thing I can come up with is that the agency is considering making an issue preclusion argument, i.e., that a claimant can't get a new hearing on Lucia grounds unless they made an objection while the case was pending administratively. I don't think an issue preclusion argument would work for a couple of reasons. First, the Supreme Court decided in Sims v. Apfel that issue preclusion generally doesn't apply in the Social Security context. Second, this would be a weird context to apply issue preclusion because Social Security has announced publicly that neither the ALJs nor the Appeals Council will consider Lucia arguments. If the agency isn't interested in making issue preclusion arguments, what are they up to? Is the point that even though the issue preclusion argument won't work that it might buy time for the agency?
The question of why Social Security hasn't tried to mitigate its Lucia problem by having the Acting Commissioner appoint each of the ALJs may take us to a darker place. The issue in Lucia was that the appointments clause of the Constitution requires that "inferior officers" be appointed either by the President or by the head of a department. ALJs have been appointed through a process that hasn't involved the President or the heads of departments. Once the Supreme Court agreed to hear Lucia, the Securities and Exchange Commission and many other agencies that employ ALJs quickly decided to have the heads of the agencies appoint each of their ALJs so that the Lucia problem would be limited to old cases. Social Security didn't do that. It still hasn't done that even in the wake of Lucia. I don't know Social Security's General Counsel but I'm pretty sure he or she is a competent lawyer so I'm pretty sure that he or she advised the Acting Commissioner to mitigate the problem by appointing each of the agency's ALJs. That hasn't happened. Why? I guess you could blame it on general fecklessness by the Acting Commissioner or, more likely, the White House, since the Acting Commissioner probably deferred to the White House. Alternatively, you could guess that there has been high level consideration of using Lucia as a pretext to replace all of Social Security's ALJs with non-ALJ hearing officers Think Mick Mulvaney, the head of the Office of Management and Budget, who tried to convince Trump that he could attack Social Security disability since it was really welfare, not Social Security. The agency could give each ALJ a notice that he or she is being riffed but that they can keep a job if they'll agree to accept a new, non-ALJ hearing officer position appointed by the Acting Commissioner. The new job would lack the protections of independence afforded ALJs. In the short run, I'd think that most ALJs would have no alternative but to take that offer, even if they immediately started looking for other work. I hate to rattle people's cages but this seems like a possibility. I think it would lead to chaos but the Trump White House isn't big on thinking through the consequences of its decisions.
Also, do not forget the democratic party's responsibility for getting us here. Bill Clinton wanted to privatize the agency. The democrats have been strangely silent about defending this program since except for the few in the progressive wing. The old party pre-Clinton used potential cutting and destruction of social security and medicare against the republicans in every election cycle. It was highly effective and we are seeing that inspite of all of the republican whining and calling foul, it has proven to be absolutely true. Where has the democratic party been? Again this cycle they are talking about defending rights of people who aren't citizens instead of knocking Trump over the head for jeopardizing social security and medicare which affects every American citizen. Our so called defenders are being bought and payed for by the same donors and are playing ball like the Washington Generals. They keep losing or playing nice when they win and the repubs keeping tearing down systems and appointing right wing judges.
ReplyDeleteI agree that there are anti-ALJ and anti-APA elements in both Baltimore and the White House. The silence from OHO top brass on the Lucia issue is deafening. They could have re-appointed all ALJs just like every other agency has done. At the very least they could send an email saying they understand the discomfort an uncertainty 1500 employees must be feeling right now and that the agency has their backs. Neither has happened, so whatever they're planning, apparently it must be kept top secret, which worries me.
ReplyDeleteThe one issue I have with your reduction in force theory is that probably half the current SSA ALJs were appointed by a commissioner (Astrue and before). So those people can't be RIF'd. And you can't very well have a bifurcated appeals process where some appeals are heard by ALJs and others by hearing officers.
Either the top brass are sticking their heads in the sand and waiting to see if anyone sues the agency over the appointment process (an argument could be made that SSA ALJs are not inferior officers because their hearing model and authority is very different from SEC ALJs), or there's some scheming going on as to how to use Lucia to reverse protections that ALJs currently have from management interference in their decision-making. Neither of those prospects are very comforting at this point.
I believe SSA is setting up an argument about issue exhaustion prior to the ALJ's determination, which the Sims Court did not address, limiting their holding to issue exhaustion at the Appeals Council. Sims at 107. That's why the instructions are to only document the constitutionality challenge if raised either in writing or orally, prior to the ALJ's determination.
ReplyDeleteTo be clear, I disagree with SSA's position. The Sims Court made clear issue exhaustion requirements are: generally set by statute, or at least created through regulation, are important in adversarial proceedings, but are less important in non-adversarial proceedings. Sims at 108-109. I am uncertain how the Sims Court could be more clear on the issue, however they were only presented with issue exhaustion at the AC.
You're conflating OPM's process of creating and maintaining the register of eligibles with the actual appointment/hiring of ALJs. Each agency actually appoints/hires their ALJs from OPM's register. Many people think (check out the ALJ Discussion Boards) that most SSA ALJs have their appointment docs signed by the politically-appointed DC or some delegate of that person or an actual COSS, who seem to have the appointment authority. So it seems like many, most, maybe all SSA ALJs already have been appointed by the person we hope is able to make appointments of inferior officers.
ReplyDeleteOr maybe SSA, which I think it's pretty widely known has major gripes about its lack of control, etc. over the ALJ corps, is diabolically hoping its ALJs are found to be inferior officers and--the more interesting issue that the Court sidestepped in Lucia--can/will be removed and replaced with either handpicked ALJ replacements or just good old fashioned hearing examiner type employees on the GS scale.
One thing is certain--we are moving with all deliberate speed to implement Trump's new executive orders. If you all want to talk about SSA action or inaction that has major consequences, you should maybe start talking about that and the ensuing crack down on performance management that's coming.
Lesson from state workers comp wars. So called comp reform has been about eliminating independent judges who were rough equals with state court district judges and replacing them with hearing officers called alj's that are totally controlled by politically appointed state commissions. Go against the commissioners and you lose your job period. The commissioners are merely the face of the employer corporations and insurance companies. Bottom line is destroy the independence of the judicial corp. The corporate power structure does not see much need for disability and certainly wants more control or profit from it and to cut it's cost. Private decision makers making a profit for somebody would probably be ideal. Deny, deny, deny.
ReplyDeleteThere is no Acting Commissioner at the moment. Berryhill is still nominally the front person, but her maximum allowable "acting" term is over and she now signs e-mails with her "regular" job title. Even if SSA wanted to ratify the ALJs, there is nobody actually empowered to do that.
ReplyDeleteThe AALJ contract is being reopened in July under the new EOs (even though the contract does not expire untli 30 September) and many perqs and benefits will probably be unilaterally taken away. Make the federal government an inhospitable employer, and hope for "self-deportation" from the ALJ corps, seems to be the Administration's current game.
Bad times to be an American worker. Either get yourself into the 1%, or hope that your kids will marry into the 1%.
It really is just an insurance case and really doesn't need an ALJ, just a claims adjudicator. Follow the LTC model in insurance. If unhappy with the decision, file in fed court.
ReplyDelete11:51 - I believe once Trump nominated Saul to be the commissioner, it restarted the clock under the Vacancies Reform Act, and Berryhill is once more the Acting Commissioner. Why she won't reappoint the ALJs or ask the president to sign off on the reappointment is a mystery.
ReplyDeleteThe ALJ program is on thin ice. The ALJ's have to re-submit an employment application package. They would not be doing this if SSA was going to just re-appoint all of them. Good riddance to the ALJ's. Too many are lazy and arrogant and incompetent. All of them are overpaid. And, for folks in management at hearing offices you're also on thin ice. Rumors abound about elimination of the HOD job. I am fine with that. They are virtually useless if they are not attorneys.
ReplyDelete8:08, define "overpaid" compared to Members of Congress and Trump's corrupt cabinet. ALJs are not submitting "employment packages". And your "rumor" (ie wishful thinking) on HOD elimination is way off base. The new EOs and contract renegotiations will make HODs more powerful, not less.
ReplyDelete9:19: your solution to the DDS 70% denial rate debacle, is to make the DDS model global?! Let me guess, you work for a Freedom Caucus elected official on the Hill, right?
9:19 you haven't practiced LTD, huh? The federal courts don't want to be flooded with disability or insurance contract appeals -- that's why ALJs exist, to free Article III judges up for more important work.
ReplyDeleteAnd LTD carriers depend on SSD -- like all good private business, they socialize the losses by requiring beneficiaries to apply for SSD and repay them (similar to SSI reimbursing local public assistance). LTD carriers have no interest in seeing the present SSD system abolished, or turned into a clone of their program.
Great opportunity to get rid of the self-entitled overpaid employees and get backto hearing officers. There's a long-standing argument that SSA proceedings aren't APA hearings anyway. So why are we torturing ourselves?
ReplyDelete