I said in an earlier post that I thought that because of the Supreme Court decision in Lucia v. SEC that the Appeals Council might as well go ahead and remand virtually all the cases it has pending. Another attorney at my firm pointed out to me the reason why they have little choice, as long as a Lucia objection has been filed with the
Appeals Council. They can’t realistically raise the objection that you failed to raise the issue before the
ALJ because in Lucia v. SEC itself (slip opinion at 3), the
objection was only raised before the Securities and Exchange Commission itself after the ALJ decision. Theoretically, one could say that issue was never considered by the Supreme Court but that's theoretical rather than an argument Social Security is at all likely to raise. Social Security can’t
say that its ALJs are different from the SEC's ALJs since the Solicitor General memo has conceded that they aren't.
If you've got a case pending at the Appeals Council and you haven't already filed a Lucia objection, you'd better do so right away. Like today.
SSA's recent EM instructed the AC to ignore Lucia arguments. https://secure.ssa.gov/apps10/reference.nsf/links/06252018113417AM
ReplyDeleteHas something changed?
Good stuff.
ReplyDeleteSomething else for reps and claimants to consider is that even if their appeal was closed they can still raise the issue in federal court.
The supreme court has already ruled in 1999 that even if someone fails to "preserve" an issue with the appeals council, they can still bring it up in federal court.
The reason, is that the appeals council is not a court, but an administrative extension of social security.
The supreme court decision I am referencing is: Docket no. 98-9537
@12:54
ReplyDeleteIf the A/C fails to act on Lucia objections they are just delaying the inevitable and INTENTIONALLY backlogging the US court system. The US attorney who fought Lucia has already advised against fighting cases with Lucia Objections and recommended auto remands.
This is NOT a good thing for SSA’s reputation in the federal court magistrates eyes. It will be viewed as intentionally backlogging an already backlogged system and may even result in awards being issued as opposed to just remands.
Whoever crafted this memo was ILL Advised to say the least.
What would be the wording of a Lucia objection? Is it an issue for federal court?
ReplyDeleteNotwithstanding the DOJ memo, I cannot understand why the agency would accept remands based on Lucia arguments (regardless of when they were made), when as of yet there has been no court ruling(1)that SSA ALJs are not employees, but are IOs subject to the Appointments Clause; or (2) if found to be IOs, whether or not that particular ALJ was not properly appointed.
ReplyDeleteThe SG's reasoning for stipulating that all ALJs should be considered IOs is flawed, because SSA ALJs have no ability to compel compliance of any orders whatsoever, and therefore do not match the 4 distinguishing characteristics of an IO as outlined by Freytag.
ReplyDeleteThis is simply a pretext by the DOJ to place more judges under the thumbs of the agencies, in keeping with the overall administration's goal of turning all civil servants into at will.
@9:47 You’re wrong. The Scotus decision had little to do with compelling compliance and more to do with the ALJ’s decision being the final decision of the administration.
ReplyDeleteALJ’s act like appointed judges but aren’t. That’s the issue.
As Lucia affects SSA ALJs, the proper remedy from a Federal District court is to remand an SSA case to be reheard in front of a properly appointed ALJ. Could reappointed ALJs be challenged as the Acting SSA Commissioner lacks the authority? From Pierce vs Berryhill "It has come to the Court's attention that on March 6, 2018, the General Counsel of the U.S. Government Accountability Office (GAO) notified the President that effective November 17, 2017, Nancy A. Berryhill could no longer serve as the "Acting Commissioner" of the Social Security Administration pursuant to the Federal Vacancies Reform Act of 1998." If so, would the remaining recourse be for the Court to not remand and decide on the merits?
ReplyDelete