In June of 2018 the Supreme Court held in Lucia v. SEC that Administrative Law Judges (ALJs) as of that date were unconstitutional because they had not been appointed by the agency head. Social Security and other agencies cured this defect by having the agency head officially appoint each of the ALJs but this left the problem of cases decided before the new appointments. Social Security has tried to reduce the scope of that problem by arguing that the issue had to have been raised before the ALJ or at least before the Appeals Council.
The first Court of Appeals opinions in one of the post-Lucia Social Security cases was Cirko v. Commissioner, a Third Circuit case, last November. Social Security lost. The Court held that the issue could be raised for the first time on appeal in the U.S. District Court.
We now have three newer opinions from Courts of Appeals. In Carr v. Commissioner, the Tenth Circuit held on June 15, 2020 that the Court could not consider the Lucia issue since it had not been raised administratively. In Davis v. Saul, the Eight Circuit held the same way on June 26, 2020. However, in Ramsey v. Commissioner, the Sixth Circuit held on September 1 that the issue could be considered even though it had not been raised administratively. There are cases pending in other Courts of Appeals as well.
The claimants in the Carr and Davis cases have asked that the Supreme Court review their cases. The Court doesn't have to do so but since there's disagreement among the Circuits, the Court probably will agree to hear the cases.
Note that a Supreme Court opinion on this issue may have implications for the litigation over the constitutionality of the position of Social Security Commissioner brought about by the Supreme Court opinion in Seila Law v. CFPB. The Social Security Administration is trying very hard to pretend this issue doesn't even exist but it does and it will be litigated. Probably, it's already being litigated. I think it's irresponsible that Andrew Saul is still carrying out the role of Commissioner of Social Security. The attitude that Seila Law doesn't apply to Social Security seems to be based upon the assumption that because Seila Law was only about the Administration's desire to knock down the Consumer Financial Protection Bureau, which they hate, that other agencies that they don't hate (or don't want to admit to hating) won't be affected. That assumes that the majority of the Supreme Court was just as cynical as they are and was only using a constitutional justification to harass an agency that the Court's majority hates as much as they do. That's not a safe assumption. As a lawyer, you may safely assume that your adversary is as cynical as you are but you should never assume that about a Court. Result oriented, maybe, but cynical, no. There is a distinction. But maybe I'm being too harsh. Another possibility is that those involved don't really care what the Supreme Court ultimately does about the Social Security Commissioner position because they expect to be out of office long before the Court can take up the issue. I guess that's just a different form of cynicism, however.
I hope all representatives are filing "Selia" objections on all their AC level cases; asking for a remand before a Constitutionally valid ALJ. Just file them, the precise wording is not really the issue; get it on record. Once SSA caves and issues a new SSR remanding all cases with a "Selia" objection, you will be glad you did not, arguably, commit malpractice by failing to protect your client(s).
ReplyDeleteFirst of all, I am not a lawyer...But, the 8th Circuits logic was (to me)...Simms doesn't count, because O'Connor decided on "narrower grounds." Those grounds were that the AC said it would review "all issues" of the Simms case. Well, if that is the 8th Circuit's argument, wouldn't the Constitutional appointment of the ALJ be an issue that the AC should have identified? How about the Constitutional appointment of the Comissioner? How about the Constitutional appointments of the AC? What is really at stake here is Simms itself.
ReplyDeleteIf you have a meritorious disability claim and your client will need to receive benefits sooner rather than later, it’s not worth it to raise a “Seila” objection on the theory that SCOTUS meant to apply it to SSA. These cases will sit until SSA figures out what to do with them and how to handle them collectively and consistently. It may be malpractice if your client is truly disabled and should receive benefits now but you raise this tangential argument that delays their case. Use this objection wisely.
ReplyDelete@ 8:36 - I could not disagree with your position more. Why do you think that will happen? The most recent analog we have are the "Lucia" cases. They are not still sitting at the Agency waiting for action. Every case at the AC level for which we filed a "Lucia" objection was remanded for a new 'de novo' hearing in a timeframe significantly less than the then standard AC decision timeframe. So 85% chance you lose at the AC on the "merits" and have to go to USDC to have a hope of prevailing or a near certain remand for a 'de novo' hearing with a different ALJ? Which is the more expeditious path for your client? I'll stick with the latter and you ought to reconsider your shortsighted position.
ReplyDeleteIn Lucia there was a clear remedy to be granted to someone making the Lucia objection; namely a new hearing by a properly appointed ALJ. However, what is the objection we would be making pursuant to Seila and what remedy would we be entitled to pursuant to the Seila decision?
ReplyDeleteThis is 7:17 again.
ReplyDeleteIn the Seila case, as I understand it, the remedy asked for was to stop an enforcement action under the the argument that the agency was not acting under legitimate authority from its top official.
I can see where such an argument might be useful in an SSA case when arguing against an overpayment claim. However, I don't see how saying that SSA is acting without legitimate authority will result in a remedy useful to claimants asking for benefits. If the remedy given is to STOP the process until legitimate authority is established, how will this help claimants trying to get benefits, if that remedy is granted? Seila Court does not involve somebody appealing an unfavorable hearing decision, nor does it grant anybody a new hearing or decision of any type, as I see it.
If there is something I'm missing here, please let me know.
Attorneys were wise to raise Lucia objections. I raised them on cases where I felt the merits of the case were at least of marginal-level quality such that if remanded it may have a chance of approval maybe with some additional medical development, thereby making it more beneficial to the claimant to take that route versus refiling. I am very glad that I did, and so too are the clients.
ReplyDeleteHowever, my concern with Seila is what the remedy would be. Assuming the plaintiffs prevail, how would a remand be tailored? The remand would have to back to the Agency for which the Court will have already held lacks the ability to enforce a decision in Saul's name. My concern is that the remedy is limbo.
If you contend under Seila that the COSS wasn’t legitimately appointed, then how can any decision by SSA (and all the COSS’s delegates), including FAVORABLE decisions, stand? IF Seila applies to SSA, do we really want to wait until a constitutionally appointed COSS is in place, reappoints every official inferior officer under him and then have clients wait for a new de novo decision by that official? I don’t see how such a “remedy” is good for a truly disabled client, especially during a pandemic. Like others have alluded to, we don’t even have a guarantee of a remand to SSA if the COSS hasn’t been correctly reappointed. Rather, it could be a mass do-over of all cases once a legitimate COSS is in place, which is why I think there will most certainly be delay. Be careful what you wish for.
ReplyDeleteThis bring us back to square one with Lucia that all the ALJ's appointed by the Confirmed Commissioner are not appointed by the President because the confirmed commissioner does not serve pursuant to the whim of the president.
ReplyDeleteQuestion: Did the acting commissioner who ratified all the prior ALJ appointments on behalf of the President, serve at the whim of the President?
If "NO", then those ALJ appointment ratifications did not suffice for Lucia.