Social Security will publish an Acquiescence Ruling to Hicks v. Commissioner in the Federal Register tomorrow. This has to do with the reviews of Eric Conn cases.
They intend to apply it only in the 6th Circuit. Here’s
what I believe is the key language:
Our adjudicators will decide whether there is a reason to believe that fraud or similar fault was involved in providing evidence in the individual’s case. We define a “reason to believe” as reasonable grounds to suspect that fraud or similar fault was involved in the application or in the provision of evidence. The “reason to believe” standard requires more than a mere suspicion, speculation or a hunch, but it does not require a preponderance of evidence. Adjudicators may make reasonable inferences based on the totality of circumstances, such as facts or case characteristics common to patterns of known or suspected fraudulent activity. For us to disregard evidence, it is not necessary that the affected beneficiary or recipient had knowledge of or participated in the fraud or similar fault.I don't ever recall seeing a legal standard of more than a hunch but less than a preponderance. My gut feeling is that such a standard can't be constitutional.
4 comments:
Sounds like the general terms used to describe both "reasonable suspicion" and "probable cause" in criminal law. Both of those standards are obviously constitutional--the application on a case-by-case basis, and whether it was "reasonable" or "probable" is where the problems come in.
I mean, a legal standard of "more than a hunch but less than a preponderance" sounds like the substantial evidence standard. That's an acquiescence, since SSA believes, and continues to believe outside the 6th circuit, that they can exclude evidence they perceive as fraudulent without any particular burden, and it is my understanding this decision is actually made outside the presence of an ALJ, being determined by the components of SSA involving fraud.
I think the standard itself isn't as relevant as the fact that the acquiescence ruling indicates the ALJ will first listen to the objections of the recipient, before deciding whether or not to disregard the evidence in question. That makes it a finding subject to judicial review, or at least as much as any other finding is. The only issue I have with it is that ALJs actually ARE expected to use the preponderance standard, their decisions are just reviewed on the lower, substantial evidence standard. So allowing the lower standard at the outset is odd. Basically substantial evidence squared. I suppose though in the end, it doesn't matter. Courts review for substantial evidence.
RTB isn’t novel. It is used by the Federal Elections Commission in opening enforcement actions.
@4:45
That's comforting.
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