There are two cases pending on the constitutionality of denying SSI benefits to residents of U.S. territories. The United States Court of Appeals for the First Circuit ruled on April 10 that SSI benefits can’t be denied to residents of Puerto Rico. It appears that the government asked that the entire First Circuit Court of Appeals rehear the Puerto Rico case en banc. The Court apparently denied the request on May 26. A couple of weeks ago a U.S. District Court judge found that it is unconstitutional
to deny Supplemental Security Income (SSI) benefits to Guam residents.
That one will be appealed to the U.S. Court of Appeals for the Ninth
Circuit.
The government has 90 days beginning with the date that the en banc motion was denied in the Puerto Rico case to ask the Supreme Court to hear the case, which is called filing a petition for a writ of certiorari, often referred to as "cert." As best I can tell, the government hasn't yet done that. They have until August 24 by my count. The Supreme Court doesn't have to grant cert. In fact, they generally don't until there are decisions from different Courts of Appeals that conflict with each other on some issue. However, the Court's rules provide that cert can be granted to settle "an important question of federal law that has not been, but should be, settled" by the Supreme Court. Determining whether hundreds of thousands of people in Puerto Rico can get SSI seems to be an important question of federal law that needs to be settled. What's the Court going to do, wait and see if the Ninth Circuit issues a conflicting ruling on the issue and only then grant cert? What about all the people in Puerto Rico given SSI in the meantime?
You might think that the Supreme Court, which is widely described as conservative, will uphold the denial of SSI to residents of U.S. territories but don't be so sure. To this point, every judge who has considered the matter, including two District Court judges and three judges of the Court of Appeals, have all found the prohibition to be unconstitutional. That's not the sort of record that would make me feel confident that the Supreme Court is going to find it constitutional. Not that it necessarily matters in this litigation, or should matter in any litigation, but four of the five judges who have considered the matter so far were nominated by Republican Presidents. The reactions of federal judges to Social Security cases don't break down along neat liberal-conservative lines. This isn't the sort of issue that is likely to draw an ideological response from the Federalist Society.
You might think that the Supreme Court, which is widely described as conservative, will uphold the denial of SSI to residents of U.S. territories but don't be so sure. To this point, every judge who has considered the matter, including two District Court judges and three judges of the Court of Appeals, have all found the prohibition to be unconstitutional. That's not the sort of record that would make me feel confident that the Supreme Court is going to find it constitutional. Not that it necessarily matters in this litigation, or should matter in any litigation, but four of the five judges who have considered the matter so far were nominated by Republican Presidents. The reactions of federal judges to Social Security cases don't break down along neat liberal-conservative lines. This isn't the sort of issue that is likely to draw an ideological response from the Federalist Society.
Once the issue gets to the Supreme Court, who knows what effect the election might have? I expect that the Trump Administration will support the constitutionality of the prohibition of SSI to those living in U.S. territories but if Biden is elected, I'm not so sure. Historically, Solicitor Generals, who are responsible for representing the U.S. government before the Supreme Court, have felt obliged to defend the constitutionality of federal statutes, even when the Administration they represented felt otherwise. However, that policy had started to break down even before Donald Trump took office. The Trump Administration has completely abandoned any pretense of defending the constitutionality of federal statutes with which it has disagreed. Perhaps the parties to the Puerto Rico case could agree to a voluntary dismissal under Rule 46. That is possible even after the case is argued. A voluntary dismissal would leave the First Circuit opinion as the final word on the case.
Coming up next in this series: What can be done to reduce the tidal wave of claims that could come from a Supreme Court opinion holding the residents of U.S. territories can receive SSI benefits?
6 comments:
Are you sure SSA filed a request for rehearing and/or rehearing en banc? I don't see such a request anywhere on the docket nor a denial of such a request. If I'm missing it, please someone post a copy. If there was no such request then the time to file for cert. has already expired and the case is over!
@10:09
Judging by the pacer link, there was a "letter" post-judgment, and an order and mandate. That indicates: request for a rehearing by the panel, request for a rehearing en banc, or a request the opinion by modified in some way and the request was denied. Or it could be a request for a stay pending appeal to the supreme court.
I couldn't open the letter because it was privacy protected, but the order in response to the letter was related to a different case - nothing about a request for rehearing.
There are some interesting differences between the Guam and Puerto Rico cases.
The Puerto Rico case arose because SSA sought an overpayment from the recipient, since he moved from New York to Puerto Rico. SSA discovered the overpayment when the SSI recipient applied for Title II benefits in Puerto Rico...which is odd, but not impossible. The recipient could've earned a minimal amount of money to become insured, or maybe it's DAC-related. Leaning toward the latter, since any PIA accrued as a result of minimal work activity probably wouldn't exceed the SSI amount, but that's speculative.
The Guam case, the recipient didn't accrue an overpayment. She spoke with SSA while residing in Pennsylvania and on SSI benefits, SSA informed her she would lose SSI benefits if she resided outside the 50 states for 30 days or more, her benefits were terminated, and she is suing to have them restored on the basis that the exclusion of Guam residents is in violation of the equal protections clause.
Curious if these distinctions would play a role in how the courts will deal with the cases. Guam case certainly sounds cleaner, so I suspect the Ninth Circuit will reach a similar result, albeit different in some ways, than the First Circuit. Without a conflict, I'm not sure how quickly the Supreme Court would jump into the mix. Maybe a claim will arise in the U.S. Virgin Islands and the Third Circuit would get involved. Unless I am mistaken, the First, Third, and Ninth Circuits are the only judicial circuits which cover territories, so that's the only hope (as odd as that is) for a conflict.
The Government actually has 150 days to Petition for Cert. On March 19, 2020 the Supreme Court issued an order that extends the time from 90 days to 150 days. The Statute does say that a Petition for Cert must be filed within 90 days from the Order of the lower Court with the possibility of an extension for good cause.
Several commentators expressed the opinion that the Supreme Court's Order extending was in fact a determination that good cause existed because of the virus.
The Government still has time to file a Petition in the Cirko case from the Third Circuit even though SSA's Petition for Rehearing was denied in late March. That appears unlikely however, because the Government asserted in Status pleadings in several District Court cases that they were not going to pursue Cirko farther.
There is however, a Lucia Appointments Clause SSA case Petition for Cert filed from the Tenth Circuit.
From a procedural standpoint this issue is shaping up somewhat like the Lucia SSA cases. The issue is whether or not claimants must raise the Appointment Clause issue at the ALJ level for it to be a valid argument in Federal Court. A number of Courts bypassed Sims and held that claimants waived or forfeited that issue by failing to raise the issue at the ALJ level. The first wave of District Court decisions held that the issue could not be raised at the first instance in District Court.
The issue and arguments evolved and several Districts in Pennsylvania, North Carolina, Oklahoma and recently New Mexico and Connecticut ruled that the claimants did not waive or forfeit and remanded for Supplemental Hearings with a new ALJ.
SSA appealed several cases and claimants appealed several cases. The Third Circuit ruled in favor of the claimants in the Cirko case. In June the Tenth Circuit reversed several District Court Remands from the Northern District of Oklahoma. About a week later the 8th Circuit upheld several District Court decisions in favor of SSA.
The Government announced in a written State Report in the Western District of Pennsylvania that it was not going to seek Cert in the Cirko case. Consequently, the Courts in the Third Circuit have remanded a number of cases that were on hold because of the Cirko case.
In the meantime, the claimants with the same issues in the Tenth Circuit and in the Eighth Circuit are foreclosed from the same relief. There is certainly a split among the Circuits. The issue is also pending before the 2nd, 4th, 6th, and 11th Circuits.
A Petition for Certiorari was filed on June 29, 2020 in the Tenth Circuit cases. The next step is a response from the government.
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