The Supreme Court decision in Lucia v. SEC is out. ALJs, at least at the SEC, have been found unconstitutional. The decision leaves wide open the question of whether Social Security ALJs are constitutional. Social Security is not discussed at all in the opinion. You can find a distinction if you want in the fact that SEC ALJs hear adversary adjudications but I don't know if that's going to be enough.
There's going to be an eruption of litigation concerning ALJs at every agency that employs them. Indeed, there will also be litigation over non-ALJ adjudicators across the federal government, including Social Security -- think Administrative Appeals Judges at Social Security's Appeals Council.
We might wish that Social Security would defend the constitutionality of its ALJs but that is far from certain. The Trump Administration may have more general aims and Social Security ALJs may get caught in the crossfire.
This is a seminal moment in the history of administrative law in this country.
There's going to be an eruption of litigation concerning ALJs at every agency that employs them. Indeed, there will also be litigation over non-ALJ adjudicators across the federal government, including Social Security -- think Administrative Appeals Judges at Social Security's Appeals Council.
We might wish that Social Security would defend the constitutionality of its ALJs but that is far from certain. The Trump Administration may have more general aims and Social Security ALJs may get caught in the crossfire.
This is a seminal moment in the history of administrative law in this country.
26 comments:
After reading the majority and concurrences (the dissent just let us know where Alito surely was going all along), it's clear that whether SSA ALJs will meet the same fate is going to come down to how two or three justices feel about the adversarial nature of proceedings, the scope of SSA pre-hearing and other power, and how decisions become final and binding and whether those things show exercise of "significant authority." Looks like it really could go either way. Oh boy!
Side note: anybody know and care to chime in about the status of any SSA ALJ challenges of this type in the federal courts? Any of them pending with or even been heard by a circuit yet?
What about Adjudicators at initial and recon, who aren't even ALJ's?
I think you're overstating this a bit. Nothing is here that a proper corrected appointment can't cure.
I quickly read the decision. It does appear to be narrowly written to apply to SEC ALJs only. The Court repeatedly stressed the adversarial nature of the SEC proceeding, saying that they have "all the tools of a federal trial judge." The Court used a prior case dealing with tax judges to determine if the judge wielded "significant authority" and was thus an officer subject to the Appointments Clause and not an employee. The court borrowed a four-pronged test used in that decision. Without going into the four parts, arguably 3/4 points listed are not duties of SSA ALJs (the only one that would apply would be taking testimony under oath). So it would appear that a reasonable reading of this decision would lead one to determine that it does not apply to SSA ALJs. The only part to me that was alarming was the conclusion of the majority opinion that stated because the SEC judge can give the final decision for the Commissioner, they were officers. However, wouldn't the fact that federal court appeals can be the final decision over a SSA ALJ differentiate them?
So, the question is who will decide if this decision applies to SSA ALJs? Would a similar lawsuit against an SSA ALJ have to wind its way through the courts? Could the president just give an order saying that it applies? Could the acting commissioner say it doesn't apply? I think the Lucia decision gives SSA cover. I'd like to know who will make that decision.
Looks to me the only issue to distinguish SSA ALJ's will be Justice Kagan referencing adversarial proceedings. Though maybe the fact that SSA ALJ's simply decide eligibility for a program as opposed to punishment for violation will be significant.
Hmmm... Methinks I hear the sound of padding dropping from many a codpiece. All those poor "almost like judges" are going to have to start looking for new reasons to boost their low self-esteem and feel superior. : )
Looking through the blog archives I see an interesting question was put forth earlier and given today's decision I think it's worth reposting.
===If the inferior officer argument wins the day, will there be an argument to make it necessary to reclassify some ALJs to hearing officer? Is the ALJ job itself an inferior officer position because it involves the type of power and authority being argued. So, if you don’t really exercise that type of power and authority being argued in this case, should you really be considered and classified as an ALJ, or should you be reclassified as something else. In this instance a hearing officer.
All ALJs have the same title but with some being labeled officers, because they actually do some kind of more significant work, leads to two classes of ALJs. I’m not sure the APA drafters had this type of two kinds of ALJs structure in mind.
I don’t know the answer to the question or whether its logically on point, but just putting it out there for discussion.
1:41 PM, April 29, 2018===
I'm sorry if this has already discussed but from a fast reading it appears that the SEC has already remedied this problem and has properly appointed the ALJ subject to the litigation and it's other ALJ staff. Surely SSA would follow suit. I'm supposing this could impact the ability of ALJ's to be removed and erode protection from an antagonistic congressman or president?
If I were an ALJ at SSA I would be very nervous about losing my job.
Once through the hiring process, Are ALJ's "appointed" by the Commissioner?
In this case, the SEC staff appointed the ALJ and there would have been no problem if the Commission made the appointment.
Appointment certificates are signed by the Deputy Commissioner of the SSA sub-agency that houses the ALJs.
Nobody up high at OHO (formerly ODAR, formerly OHA, formerly BHA) had any words about this over internal e-mail today.
The agency probably knows what they want to do, but they'll roll out their changes in slow-drip torture over the next 2-3 years.
A change in the government, and a purging of the far-right think-thanks that made this Court case a reality, would also be one step towards protecting SSA ALJs' decisional independence.
>> Once through the hiring process, are ALJ's "appointed" by the Commissioner?
Yes, but there has not been a real commissioner who went through the advice-and-consent process since Michael Astrue, whose term ended at the beginning of 2013. I would suggest that every SSA ALJ who has been appointed since Astrue may be acting ultra vires. What a mess that would be!
What remains to be seen is how the removal clause in Article II will be applied. Are the APA job protections for ALJs contrary to the removal clause? Most relevant case on this issue seems to be Free Enterprise v. PCAOB, 561 U. S. 477 (2010).
If they can get around the APA, I imagine SSA management printing a list of ALJs sorted by number of dispositions, with a line drawn above everyone not hitting the arbitrary 500 mark, and Trump announcing, "You're fired!"
Almost no coverage of this ruling at least on mainstream television media. They are too busy talking about what was on Melania's jacket today. Great timing for this ruling to be totally drowned out. While our focus is on immigration we are missing the impact this can have on a whole bunch of our fellow citizens. Also, the potential power grab that may be offered to this horrid administration. If nothing else I'll bet this will guarantee another Wall Street banking collapse.
I believe that the SCOTUS decision could be the beginning of the end of the ALJ program at SSA. Considering how poorly so many ALJ's do the job maybe there is a silver lining to the SCOTUS decision.
There are a few practical issues to consider. At the oral argument for Lucia, several justices including Justice Kagan who ultimately wrote the opinion, asked about the appilicability of these arguments to SSA ALJ's, both Lucia and the government took the position that the inferior officer argument does not apply to SSA ALJ's. of course thats just the position of the parties, but its important to see that in deciding Lucia the justices were at least aware of where the majority of federal ALJs actually work.
Because the government (under both administrations) conceded that SEC ALJ's were not appointed by a department head, there is little discussion about the appointment process in the decision. At SSA, ALJ's are appointed by a deputy commissioner under the commissioner's statutory authority to delegate their duties. Justice Breyer vaguely alludes to this in his concurrence/dissent. Its vastly different than being "hired by staff" as they were at the SEC.
There are several Lucia challenges to SSA ALJ decisions pending across the country that have been on hold pending this decision.
Whatever you call ALJ's is not material to the argument. Whether they are ALJ's/hearing officers/widget makers, the same argument applies that they are exercising the authority of an inferior officer.
I would think SSA's arguments to these challenges would be-
ALJ's are employees because of the non-adversarial nature of the proceedings
if they are inferior officers, they have already been appointed in a manner than conforms to the constitution.
SSA is desperate to avoid a scenario in which they have to do some kind of re-appointment that would mean every case pending at the AC has to be technically remanded because the ALJ did not have the authority at the time to hear the case.
Woo HOOOOO!!!! Well done SCOTUS!
Yeah they really need to hire internally. The OPM process that they currently use does not lead to qualified people getting into the position. They really need to just make the position something along the lines of hearing monitor and promote internally and have more of them. This area of the law isn't exactly rocket science.
reading these comments I still wonder what the proper protocol is for making challenges at the hearing or AC levels. (Not that I necessarily want to invalidate the ALJ's or their decisions.) More of a CYA.
As a claimant's attorney/representative are we required to make a Lucia objection in every case to preserve our clients appeal rights? Would be required to file an AC or FDC case? would not doing so be tantamount to malpractice?
Since most Article III judges seem to hold ALJs in utter contempt (e.g. Posner's "chicken deboners," Justice Roberts repeatedly referring to ALJs as "hearing examiners" in oral argument), my solution would be to eliminate ODAR/OHO entirely and make the DDS determinations final for the commissioner. Any appeal would be directly to federal district court. Add another million or so cases to their annual docket and see how they like it.
The issue will be what SSA decides to do with this decision.
They could just issue a statement that they don't think that SSA ALJs are the same as SEC ALJ, but that in the interest of avoiding any issue, just do a blanket "appointment" of all the sitting ALJs.
However, if the SSA wants to use this decision to remove certain ALJs, they could say that SSA ALJs must be appointed and then only appoint the ALJs they want to keep, fire others, and appoint new ALJs. This would most likely lead to litigation as any fired ALJ would sue arguing that the decision does not apply to SSA ALJs. This would be a mess.
9:07 - "Woo HOOOOO!!!! Well done SCOTUS!"
Welcome to the blog, Mr. Lucia.
I agree. SSA seems to place a great deal of emphasis on litigation experience for selection of their ALJ's and hire folks who have no clue about anything related to social security disability law and operations. Then you end up with ALJ's who screw up one case after another for years on end and collect a bloated salary. Many of the ALJ's at SSA are virtually worthless. Why not try something else? And the APA was not meant to shield incompetent and lazy ALJ's from being fired but that is, in effect, what it does.
Hire the most productive attorney advisors and senior attorney advisors to take over the role currently being done by ALJ's. They will be cost less, be better at the job, and be more productive than so many of the clown ALJ's who don't do the job well and collect a bloated salary.
7:51 PM. Why would litigation experience be a consideration, let alone desired? After all, the hearings are supposed to be "non-adverserial."
I'm very sorry but I just don't see this epidemic of ALJ's screwing up everything. This to me is pure extreme right bullshit if you will pardon me. In fact, the only place my clients are getting any relief is at the hearing level when ALJ's ignore many of the ridiculous initial and recon decisions denying obvious cases that should be payed. Let's be honest ALJ's are hated by some because they can't be totally controlled. I see agency decisions at the earlier levels that SSA should be ashamed of. If the bomb throwers, Kochites and anarchist libertarians succeed in bring total chaos to this system you will see an internal disaster damaging our own citizens which will make the immigration story look pale by comparisons. It will be an intentional culling of the disabled population just as sure as Nazism was but by more Orwellian methods. Also, at some point the American people will wise up and you are going to see one hell of a backlash.
@7:51
SSA doesn't place any emphasis on litigation experience. OPM does that. SSA is very limited in their options in bringing on new judges.
To 7:54's point, SSA does that as much as they're able. However, because OPM is screening for all federal agencies that use ALJs (despite SSA employing over 85% of all ALJs and hiring over 90% of the judges directly from the register) with each agency having an equal say in what is important for their judges, insiders with little experience outside of SSA are buried on the register, if they make it on at all.
I'm interested to see if any reps object to my holding of a hearing on these grounds. Guess I'll have to postpone their client's hearing indefinitely until there is a resolution reached. I'm sure that will go over well.
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