Email from the Chief ALJ
Colleagues,
On June 21, the Supreme Court issued its decision in
Lucia v. SEC, Case No.
17-130. The
holding in Lucia was narrowly tailored to SEC ALJs, and does not directly implicate
SSA ALJs or our programs. After
analyzing the holding in Lucia and consulting with the Department of Justice,
earlier today the Acting Commissioner ratified the original selection of
incumbent SSA ALJs and approved their current appointments in the competitive
service. Moving forward, affirmation of
the oath of office will be administered, and your e-OPF files will be updated
accordingly to reflect these actions.
On July 10, 2018, President Trump issued an Executive
Order 13843 (EO). This order addresses potential constitutional concerns
with the ALJ appointment process without affecting ALJs qualified decisional independence or altering
the status of ALJ incumbents. The EO
provides prospective direction; therefore, the Acting Commissioner s actions to
ratify the appointment of incumbent ALJs to their position in the competitive
service is in accordance with the EO.
The Supreme Court once described our hearings operation
as the largest adjudicatory system in the world. At the heart of our massive and complex
operation is each of you, who serve as the face of this agency for thousands of
people every day. Your dedication is a
testament to public service and is critical to ensuring that our vital work for
the American public continues uninterrupted.
Thank you for your service and dedication.
Patrick Nagle
27 comments:
Do you have an external citation for this? or to the acting commissioner's ratification order?
Wow. This is getting interesting. When will the merry go round stop? Why do I not believe this is the end of the story.
"The holding in Lucia was narrowly tailored to SEC ALJs, and does not directly implicate SSA ALJs or our programs."
Yes it does. Hence the acting commissioner certifying the current ALJ staff.
Get ready for plenty of federal lawsuits and remands. Anyone denied prior to today can get a remand as their denials are null and void.
The question is whether Berryhill has the authority to re-appoint the ALJ's. Wasn't she removed from the Acting Commissioner role? I guess we will find out in the coming days. The drama continues. My guess is this is not going to work.
Anyone who was approved will also get a remand from the AC because their approvals are null and void.
Berryhill was reinstated as ACOSS after a COSS nomination (Saul) was finally offered. She began signing her emails as ACOSS again, after a long period of no longer using that handle. The DOJ also approved her decision to ratify us, although this email comes from the chief ALJ, not the ACOSS.
There was a pop song in the early '90s called "The King of Wishful Thinking". Every long haired guitar player in high school back in those days knew how to play it. This reply reminds me of that song. For some reason.
4:10 - "Anyone denied prior to today can get a remand as their denials are null and void." Do you really think a federal court will invalidate hundreds of thousands of SSA ALJ decision? Get real. The Supreme Court may have held that it is appropriate for an SEC agency head to appoint their ALJs, but to invalidate years' worth of ALJ hearings would be a bridge too far.
4:49 - Now that the president has nominated a commissioner, the clock has re-started for Berryhill and she is again the acting commissioner. I would be surprised if that's not good enough. ALJs are not the only inferior officers in the government, and if a legally recognized acting agency head can't appoint an inferior officer, then things would begin to break down every time the President is slow in nominating someone or the Senate is slow in confirming.
Another EO is sure to be issued. Stay tuned.
same/similar emails sent out to ALJs and AAJs ratifying people currently in both groups. memos also sent to official personnel folders.
not sure if other agencies like HHS did the same.
It would not surprise me to see Berryhill fired after this.
so I wonder if the ALJ union will treat any ALJ hired via excepted service as second class citizens/union members or refuse to allow these new folks into the union?
The law is the law. I doubt the courts would care that there would be an increased case law.
Scotus has set a precedent. Let the litigation begin!
An EO about what? Is this a news leak or idle speculation?
After the DOJ approved the ratification? That seems very unlikely. Ratification was not a rogue action some by somebody working against the grand plan.
The ratification sounds nice, but with the AALJ contract being weakened under the previous collective-bargaining Eod, SSA/OHO will still find it easier to remove even ratified ALJs that they don't like.
That's an odd blame-the-victim post. The new Schedule E ALJs might not even be eligible to join the bargaining unit ....
AALJ will welcome all non supervisory ALJs as members.
If the holding in Lucia was seemingly tailored only to SEC ALJ's why do the "re-appointment" of ALJ's at SSA? And, there are questions abound regarding whether Berryhyill actually has the authority to do so. It's abundantly clear that the ALJ's at SSA under the current format (competitive service and under the APA) may become a thing of the past. IF more ALJ's would do their jobs properly I doubt this would have happened. Unfortunately, while all ALJ's at SSA love receiving their bloated salaries most of the ALJ's at SSA have exhibited little accountability to do the job right. So, in a way they brought this whole mess on themselves.
Your bitterness and lack of information has brought you a million clicks off course. You're hoping that yesterday's action will have the precise opposite effect of what it meant to do. You don't fire ALJs by legitimizing the entire corps.
No. What happens next involves the new anti union EOs. AALJ can no longer bargain. The new take-it-or-leave-it contract will make it easier to fire ALJs who can't get to, say, 300 a year. You'll see a lot of removal actions in the next five years.
@6:23
How does the nomination reset the clock on Berryhill?
A remand on their denials? If that's the case, then Fully Favorables granted are null and void as well. Be careful what you wish for.
Executive service employees are unionized in many agencies. Why would they be treated differently in SSA?
You want to end unionized ALJs make them management by giving them their own staff.
I wouldn’t doubt if what the commissioner is doing would hold any water at all.
In the Lucia ruling they made it clear the SEC would have to assign a new judge to the case.
11:08 - There is a Congressional Research Service Study that explains the Vacancy Act (https://fas.org/sgp/crs/misc/R44997.pdf).
According to the study, there is legislative history that states that when a nominee is presented after the 210 (or 300) days expires, the Acting Commissioner who was tossed by the limit of 210 days (or 300) springs back and once more becomes the Acting Comm.
4:51 AM - Talk about someone that ate too many sour grapes this morning!
If I follow your logic, SSA ALJs and their "bloated" salaries somehow caused Lucia to initiate litigation against the SEC? And if "ALJs would do their jobs properly," The Supreme Court would never have ruled against the SEC? That's a quaint view on how our federal court system works.
@1:49
Interesting. Thanks for the info! I was legitimately curious.
What will the reps do now that the upward mobility path to ALJ and being a "judge" is less shiny and secure?
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