Oct 14, 2018

When Will The Appeals Council Act?

     The Securities and Exchange Commission is remanding all cases pending before the full Commission for new hearings before different Administrative Law Judges, without regard to whether the Lucia issue was raised before ALJ or even before the full Commission. When will Social Security follow suit? Tens of thousands of cases are pending at Appeals Council. My firm has a considerable number of cases pending at the Appeals Council. We’ve raised the Lucia issue in each one. We’re not getting remands. We’re not getting denials of review. The cases are just sitting there.  What are they waiting on? Come on, Mr. Lucia himself didn’t raise the issue of ALJ appointment before the ALJ.


Joyce said...

I am really amazed that seasoned attorneys fail to understand, and the Trump Administration fails to understand, that Lucia does NOT apply to Social Security ALJ's no matter what Executive Order Trump issues. This is a quote from the oral argument: JUSTICE KENNEDY: If -- if we follow
your theory of the case and -- and you prevail,
what effect, if any, will that have on ALJs in
other agencies, Social Security ALJs?
MR. PERRY: Justice Kennedy, our
submission is limited to ALJs who decide
adversarial proceedings subject to Sections 556
and 557 of the APA. There are approximately
150 ALJs who fit that definition, which is not
Social Security ALJs, by the way, in the
federal government, in 25 agencies."

And this is from the syllabus of the decision: "Held: The Commission’s ALJs are “Officers of" the United States,” subject
to the Appointments Clause. Pp. 5–13.

If SS practitioners continue to raise the "Lucia" issue you face a very real possibility that SCOTUS will eventually hear a case in which it is involved and apply it! Do you want the Agency choosing ALJS based upon whether they will rule in favor of the Agency instead of the APA system? As a retired ALJ, I am horrified by that possibility!!!

Anonymous said...


As noted in Justice Breyer's concurring/dissenting opinion in Lucia, joined by Justices Ginsburg and Sotomayor, the Court's holding addresses all ALJs. Justice Breyer noted he dissented in part on the basis the Court should have limited its holding to the SEC's ALJs, in particular noting the Social Security Act permits delegation of duties without published order, citing 42 U. S. C. §902(a)(7), a fact Justice Breyer found distinguishable.

At least three, arguably nine, Justices disagree with your impression of Lucia.

As to your citation of the SEC's oral statements, they are not binding legal authority, but it is notable the issue was squarely presented to the Justices and the majority held not to limit their holding.

As to whether I want SSA to chose ALJs based on whether they will rule in favor of the agency, no. But, that doesn't change the Lucia Court's holding.

Anonymous said...

@ 2:09

Funny how you point out things that don't matter and don't cite the concurring opinion you reference. The majority opinion--you know, the only one with force of law--said the ruling only applied to SEC ALJs. The Court purposefully punted on answering the big, sexy questions of whether all ALJs are inferior officers and if the APA, etc. are unconstitutional infringements on those who appoint inferior officers' ability to direct/control/fire their inferior officers.


Anonymous said...


Wrong. SSA has already issued an EM about this topic.


Anonymous said...


I never claimed the concurring/dissenting opinion had the force of law, only noting it is informative of how three Supreme Court Justices interpret the majority opinion, which I find may provide a modicum of insight. I disagree concurring and dissenting opinions "don't matter," as the makeup of the Court can (and has) changed, and not in support of agency.

I agree the majority attempted to punt the issue, but I do not see how the issue would not be resolved identically if the case is brought in the Social Security context. As the majority held, the determinative issue is whether the officer is capable of rendering a final decision. In some cases, SEC ALJs were rendering final decisions. In ALL cases, SSA ALJs render final decisions absent the exceptional rare circumstances when an AC renders a new decision, at which point the ALJ's final decision is vacated and replaced with the AC's final decision.

Anonymous said...

@ 3:41

I'm not really interested in doing this further because your reading comprehension skills are just not good. The majority opinion did not make rendering final decisions the determining factor. In fact, when they discuss Freytag--the case whose reasoning was the backbone of their reasoning--they note that issuing final dispositions is a lousy measure, pointing out that the Special Trial Judges were inferior officers despite not issuing final decisions (why don't you See Lucia at 7, skippy).

Since you have shown you did not or cannot read the opinion accurately and discuss it, I'm done engaging with you about its substance :)

Anonymous said...

The majority holding literally says that issuing a final disposition is not dispositive, noting in its Freytag discussion that those STJs were found IOs despite not issuing final decisions because of other factors you should go back and read.

Anonymous said...

Mention circuit law and they make you wait even longer it seems.

Anonymous said...

@507 they are practicing in this field for a reason.

Anonymous said...

Appeals Council and social security in general seem to have a "make em wait until they die" philosophy. There is absolutely NO REASON things should take as long as they do.

I do know from having to fax the A/C documents and talking to workers there, that they only have 2 functioning fax machines and both are from the 90's. No fax to email.

Anonymous said...

After the Lucia decision, the Agency ultimately took action to re-appoint all current sitting ALJ's have as required under the relevant laws, and consistent with Lucia. If an attorney wants action in SSA matters, based on Lucia, they need to think long and hard about what they are going to do with all of the fees they've collected on their favorable cases, since overturning and requiring rehearing of all cases by a duly appointed ALJ would include those favorable decisions as well. No telling what a different set of eyes might see in your claimant's case. And what will those claimants say, who have been receiving benefits and all of the sudden, they may not? Continuing to pursue this avenue for SSA cases is foolhardy.

Tim said...

6:50 AM. Are you suggesting that SSA would try to have the favorable ALJ decisions overturned? That would be crazy. The only way to do that would be to have ALL decisions made by ALJs to be vacated! Lucia didn't do that in the SEC, why would that happen to SSA?

Anonymous said...

@ 6:50, & @ 8:51

SSA would NEVER overturn favorables, unless in an Eric Conn situation.

People that say SSA would overturn favorables are most likely ALJ's who are upset that their jobs are in jeopardy. Just ignore them.

Anonymous said...

SSA would never overturn favorable decisions.

The only ones saying this are disgruntled ALJ's who are upset that Lucia is threatening their jobs.