The Supreme Court has agreed to hear Carr v. Saul and Davis v. Saul, two cases presenting the issue of whether the federal courts can consider Lucia objections to Administrative Law Judges (ALJs) having heard cases before the Social Security Administration when those objections had been raised administratively. The Supreme Court held in Lucia v. SEC that ALJs were unconstitutional since they had not been appointed by the agency head. Since that time they have been.
My opinion is that it's nuts to expect claimants to have raised Lucia objections when the Social Security Administration's stated position was that it wouldn't consider Lucia objections. It's also nuts because the Supreme Court had previously held that it was not necessary to raise other sorts of objections in Social Security cases administratively before raising them in the federal courts.
It's possible but I imagine unlikely that the new Solicitor General for the Biden Administration could decide to settle these cases before they're heard.
this also has big implications for the Seila Law line of cases which the AC has flagged and is waiting for further guidance on.
ReplyDeleteSSA's line will be, in Sims, the Supreme Court held a claimant need not re-raise an issue to the AC that was already raised to the ALJ. So the claimant can be required to raise it at some point.
ReplyDeleteBut, that ignores the Sims' court's actual holding, which was SSA's regulations don't require issue exhaustion, nor do the statutes. And, while the judiciary sometimes imposes issue-exhaustion, the usefulness of that is correlated to how adversarial the proceedings are, and SSA proceedings are non-adversarial (technically). So no issue exhaustion required.
Regardless, it's kindof absurd to require a claimant to raise an issue ALJs can't address. As I recall, SSA's instructions are just to have the ALJ flag the claim and explain to the claimant they aren't ruling on it.
What is the rep end game here? Why request an ALJ hearing in the first place, if you're a libertarian type who denies the administrative state? Do they want the hearing request withdrawn and the DDS determination reinstated? That would be fair. Or are they just hoping for mass remands on nom-merit grounds, and hoping to win 18 months later with replacement AC judges (who will likely be on 80%-denial marching orders)?
ReplyDeleteI just can't figure it out.
Read the Lucia oral arguments again, Charles. Breyer asked about SSA ALJs and Lucia's attorney said they weren't part of the argument.
ReplyDeletePlease note that two Circuits (3rd and 6th) have ruled in favor of the claimants position. Those cases are not part of the two cases taken up by the Supreme Court. In fact, many of the Circuit cases have been remanded and some claimants have received new hearings. I do not know what is going on with the 6th Circuit cases. Also, the issue is before most of the other Circuits.
ReplyDeleteThe Tenth Circuit in Carr vs. Saul appears to be putting Social Security non-adversarial cases in the same category as other adversarial administrative actions. In the adversarial cases there are very strict rules of waiver and/or forfeiture.
Since Carr I have been filing Carr/Minor Notices in my hearings. The Notices identifies all issues that I believe are pertinent to the case. I do not want to find later (in Federal Court) that I have forfeited or waived issues that I want to raise.
In my opinion, the Courts have treated Social Security Disability litigation differently because it is non-adversarial. The ALJs position is looked at as one of inquiry.
There will not be mass remands. These cases only apply to those who were diligent enough to raise the issues. After Lucia, the SSA and also the President reappointed all of the SSA ALJs in July 2018. The Appointments Clause issue is not finite because of the lapse of time. Cases after the reappointments are not part of the equation.
@12:42 PM:
ReplyDeleteThe ultimate rep end game is always a 100% win rate.
I invite you to think of the SSA disability system as a ginormous Rube Goldberg vending machine with lots of whirligigs and pushy buttons.
You make the Lucia argument because it is a new pushy button that magically appeared, growing organically from the great machine, like a rose grows from a bud. As a rep, you can push the new pushy button to see if a win eventually falls out.
ALJ's, AC-judgers, DDS, Vocational Experteers, Medical Evaluationists...they are all whirligigs and trap doors and marble chutes in one of the greatest and most fascinating vending machines ever created by mankind.
(Yes, I am asserting Posner got it wrong. ALJ's are more akin to whirligigs than chicken deboners.)
Hope this helps.
@1:20 PM I do not get your argument. Attorneys are ethically bound to zealously represent their clients. We do not get a 100% win rate but we should do everything legally and ethically to achieve that result.
ReplyDeleteAs far as I know Lucia was not argued by very many attorneys. In the three Federal Districts that I practice in I was the only attorney to raise the issues. When I first had success with the issue I called some of the other Federal Court attorneys. I talked to 5. Three of those attorneys asked what it was. The other two knew about it but did not think it would go anywhere.
As far as I can see the issue only applies to those claimants who raised it in a timely manner. I do not see it as a grounds to attempt to reopen a failed case many years later.
Are you saying we should ignore some legal argument that might assist our clients. I would not do that to my clients.
My case is in one of these two circuits....I was awarded SSDI on a 2nd application. The first denial by an ALJ cost me about 4-5 years (5, if you go by amended onset date), which would equate to between $75,000 to $100,000. Not exactly chump change. But, what would be the risk of another hearing? Would there be ANY protections from a new ALJ hosing me completely? Not that I could pay any "overpayments" if denied outright...I am concerned about the next 15 years and thereafter. I am now well beyond the date of last insured and I am much more confident of Trump's ability to pull out this election (certainly small) than my own ability to become "insured" again. My attorney from my 2nd case told me the "risk would be too great" and "therefore, unethical" for him to represent me should I ever get a remand. What are others thoughts on this?
ReplyDeleteTim:
ReplyDeleteHow are you going to get another hearing through this process? These cases are not going to reopen cases from years ago. The cases in the Supreme Court are only going to touch those that have actually raised and litigated the issue.
Even if your first case is still pending on other issues the ALJ who you would meet for the next case has probably been reappointed on July 17, 2018.
The Supreme Court cases are not class actions for all who were denied by a ALJ who was appointed in an unconstitutional manner. The Supreme Court cases involve a finite number of individuals on a narrow issue of law. Most, if not all, of those involved are probably already at some level of the Federal Court system.
@7:56
ReplyDeleteAs I recall, the ALJs were reappointed on July 17, 2018 when Berryhill was unlawfully serving as Acting Commissioner as she needed to be approved by Congress (or someone else needed to be) by November 17, 2017. At that time she was not capable of exercising the powers of the Commissioner, and given SSA thought they needed to have the agency head directly appoint ALJs, unless Saul has now re-re-appointed the ALJs, I see an issue.
As to the cases not being class actions, of course. But, it would be relevant to actually a significant number of cases at the AC, and some awaiting judicial review. Probably a few thousand overall.
I appealed to Federal Court and to the Court of Appeals. My case was partially decided with one of the two cases. I am going to ask for a full circuit decision...
ReplyDelete@7:03 AM
ReplyDeleteThe cases at the Supreme Court will not touch anything at the Appeals Council. SSA promulgated SSR 19-1p to address Lucia cases at the ALJ and Appeals Council issue.
I need to report. I am an Attorney involved in one of the cases before the Supreme Court.
After 19-1p was promulgated I have have raised the Appointments Clause issue at the Appeals Council and have received Remands regarding the issue.
The Supreme Court cases are much narrower and only involve cases where the issue was raised for the first time in Federal Court.
The Government conceded that the ALJs were not appointed pursuant to the Constitution Appointments Clause. The issue is whether or not the claimants waived or forfeited their Appointments Clause issue by not bringing it up to the ALJ at the hearing.
The ALJs were reappointed twice, once by the head of the Agency on July 17, 2018 and once by President Trump (I don't have that date but it is around the same time).
The cases involved in this litigation are cases that were decided before July 17, 2018 by an ALJ. Furthermore, the issue only applies to those who have raised the issue.
@6:07
ReplyDelete7:03 here. I didn't mean the cases at the Supreme Court would directly touch anything at the AC, just that if the AC declines to review and those cases proceed to court, assuming the Petitioners win at Supreme Court, it would make a difference if those AC cases were to argue in the first instance at Court, which is a reasonable possibility assuming those at the AC have not been represented. It's not like the average claimant is going to think of an appointments clause challenge on their own at any time during administrative proceedings.
Interesting to know the President reappointed ALJs after Berryhill. That's legitimately comforting from a procedural standpoint. Unwinds a quirk in my mind that's been bugging me. Thanks!
With that in mind, yeah that does narrow down the cases quite a bit. I would expect most cases where an appointments clause challenge could be made in the first instance is narrowing by the day, simply through the passage of time.
@7:40 AM
ReplyDeleteIf there are cases sitting at the Appeals Council now that were decided by an ALJ prior to July 17, 2018 the attorney or representative could just file a Supplemental Brief and bring up the Appointments Clause issue. The Appeals Council would then follow SSR 19-1p and Remand the case. I have received several Remands under that scenario.
Why would you want to wait for Federal Court when the Appeals Council would grant a clear path?
@10:47
ReplyDelete7:40 here. I'm referring to claimants who didn't see the need for representation prior to Court. We pretty regularly are approached by potential clients who now want to be represented once they get to Court. If the Supreme Court sides with petitioners, that would support offering representation after the AC affirmed.
@12:26 PM It is possible that there are still such cases at the Appeals Council that fall into your premise. The key to those cases is that the ALJ hearing and Denial Decision has to be issued before July 17, 2018. If the ALJ decision was rendered AFTER July 17, 2018 it was done by a re-appointed (legally) ALJ. I am not seeing cases that fit into that scenario.
ReplyDeleteAnother aspect has to do with the Circuit you are in. The 3rd Circuit and the 6th Circuit ruled in favor of the claimant's position. As far as I know SSA and the Department of Justice did not request Cert at the Supreme Court for the cases from the 3rd and 6th Circuits. Claimants in those Circuits are free to raise the Appointments Clause issue for the first instant in Federal Court.
On the other hand, the cases in the Supreme Court, from the 8th and 10th Circuit are barred from arguing in Federal Court unless the Supreme Court overturns the Circuit Court decisions.
I am aware of cases involving this issue in several other Circuits, particularly the 2nd and the 4th.