Boring To Most Readers But Essential To Some

      Social Security is changing its rules to centralize acceptance of legal process. To explain, Social Security gets sued many thousands of time a year. The vast majority are appeals in disability cases. If you sue someone, you have to tell them they've been sued. This can be referred to as "legal process." Up to this point, where you sent the legal process depended upon where the lawsuit was filed. Now, they will all be sent to the same place. This has to do with changes at Social Security's Office of General Counsel (OGC) but also with changes in the Federal Rules of Civil Procedure. This change will appear in the Federal Register (where official federal announcements are published) tomorrow.

Interesting Study On Federal Court Litigation

     The Administrative Conference of the United States (ACUS), a federal agency that does legal research and makes recommendations for federal agencies, has released A Study of Social Security Litigation in the Federal Courts. Here are a few excerpts (footnotes omitted): 

• This investigation revealed one obvious fact: federal judges know little about the path social security claims follow from initial filing to their chambers.
• District and magistrate judges tend to march in lockstep within districts. Districts with one judge who remands a lot of cases to the agency tend to have other judges who do so as well. Very few individual judges have decision patterns that depart significantly from what their district colleagues produce.
• Circuit boundaries are associated with a good deal of district-level variation. For example, the fact that the Eastern District of New York remands more cases than the Southern District of Florida seems to be significantly related to the fact that, over all, districts in the Second Circuit remand a greater share of cases than do districts in the Eleventh Circuit.
• A number of factors – judicial ideology, the degree of a district’s urbanization, the assignment of cases to district versus magistrate judges, ALJ [Administrative Law Judge] case loads, and others – have little association with case outcomes. 
• Most of the twenty-four ALJs we interviewed subscribe to what one labeled a “just in time” approach to case review.  An ALJ using this method first looks at a case anywhere from one day to a week before the hearing. 
• The agency can always appeal the district court’s decision, but it almost never does so. The courts of appeals might receive somewhere in the neighborhood of 650 social security appeals each year, no more than twenty of which are affirmative appeals by the Commissioner. In FY [Fiscal Year] 2014, the agency filed exactly one appeal. Several reasons might explain this low incidence of appeal, but one institutional fact is surely important: the Solicitor General of the United States must sign off on any appeal the SSA [Social Security Administration] might want to take.
• The hearing office that we studied in the low remand district came off as a model of institutional health. “I can’t begin to think of a better place to work,” one decision writer told us. The office has stable management, with a long serving Hearing Office Chief Administrative Law Judge (“HOCALJ”), and ALJs tend to stay once they are assigned there.
• Most of the hearing office personnel from the high remand district described a very different and more problematic work environment. Several ALJs complained of poor quality decision writing, and several expressed a preference for decisions written off-site in national case assistance centers. An ALJ described unstable, volatile management at a hearing office for much of the past decade, and ALJs and a claimant representative complained of the office’s capacity to perform basic administrative tasks. Some personnel described communication difficulties between ALJs and decision writers.
• Recommendation 1. Congress should give the Social Security Administration independent litigating authority. 
• Recommendation 2. Congress should enact enabling legislation to clarify the U.S. Supreme Court’s authority to promulgate procedural rules for social security litigation. The Judicial Conference should authorize the appointment of a social security rules advisory committee, and the U.S. Supreme Court should approve a set of social security rules drafted by this committee.
• Recommendation 3. A uniform set of procedural rules for social security litigation should contain (a) a rule requiring the claimant to file a notice of appeal instead of a complaint; (b) a rule requiring the agency to file the certified administrative record instead of an answer; (c) a rule requiring the parties to exchange merits briefs instead of motions; (d) a rule setting appropriate deadlines and page limits; and (e) a rule creating a presumption against oral argument. 
• Recommendation 4. The Administrative Office of the United States Courts, the Federal Judicial Center, the Administrative Conference of the United States, and the Social Security Administration should cooperate on several initiatives to improve communication among the agency, claimant representatives, and the judiciary, and to educate the judiciary in important aspects of the claims adjudication process. These initiatives should include the creation of social security standing committees for each district and the drafting of an introductory manual on social security law and processes.
• Recommendation 5. Congress should not replace the existing system of judicial review with a specialized court for social security appeals. The Appeals Council should issue opinions in a set of appeals each year that will benefit from Chevron deference and thereby reduce circuit-level variation. 
• Suggestion 1. The agency should investigate further the relationship between hearing office performance and work environment, on one hand, and remand rates in district courts, on the other. 
• Suggestion 2. The agency should add bottom-up, localized experiments to their quality assurance initiatives. This experimentation could include a pilot project in several hearing offices that uses district court decisions for guidance and critique.
• Suggestion 3. The Social Security Administration and the Administrative Office of the U.S. Courts should provide the federal judiciary with a database listing district and magistrate judge decision rates. 
• Suggestion 4. The Social Security Administration should attempt to quantify the “false positive phenomenon,” or the number of court remands that, once adjudicated again, do not result in the payment of benefits. 
• Suggestion 5. To the extent possible, the Social Security Administration should require that hearing offices assign court remands to the same decision writers who worked on the cases the first time.
• Suggestion 6. The Social Security Administration should study the issue of an OGC [Office of General Counsel] attorney’s ethical obligations and, where appropriate, provide clearer guidance.
• We nonetheless believe that only a dramatic reduction in ALJ caseloads could permit significant, across-the-board improvements in decision-making quality sufficient to cause the federal court remand rate to plummet sharply. To avoid a spike in the backlog of claims, the size of the ALJ corps would have to increase. Ultimately, this may be the most important reform of all.

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They Didn't Take The Dare

Judge Easterbrook

     I thought I would update this one. See below for what I wrote a few months ago. It appears that Social Security (or perhaps the Solicitor General) didn't rise to the bait. I see no sign that a petition for rehearing en banc was filed. It looks like no petition for certiorari has been filed with the Supreme Court. The time for doing so has now passed. 
     Those of us in private practice with even a little experience always advise against taking weak cases to the Court of Appeals. It's good advice for Social Security as well.

     Marilyn Boley's claim for Social Security disability benefits was denied at the reconsideration level. She was represented at the time by an attorney. Ms. Boley received the reconsideration determination. Under Social Security's regulations the determination should have been sent to her attorney but it wasn't. Ms. Boley had 60 days to request a hearing before an Administrative Law Judge (ALJ). Ms. Boley, who was preparing for a double mastectomy at the time, thought her attorney would take care of the appeal but he didn't since he didn't know she had been denied. The request for hearing was not filed until nine months after the reconsideration denial. Social Security's regulations allow for accepting an appeal that has been filed late if there is good cause. The Administrative Law Judge to whom the appeal was assigned did not think there was good cause and dismissed the appeal. The Appeals Council affirmed the dismissal of the appeal. 

     Ms. Boley filed a civil action in United States District Court to obtain review of the dismissal of her appeal. The statute governing review of Social Security cases in federal court says that review may be had only of a "final decision of the Commissioner of Social Security made after a hearing." Social Security has always argued that the civil actions like Ms. Boley's must be dismissed because there was no hearing on the dismissal. Almost always Social Security has won these cases. In Ms. Boley's case the District Court agreed with Social Security and dismissed her civil action.

     Ms. Boley appealed to the Seventh Circuit Court of Appeals and finally won. In an opinion authored by Judge Easterbrook (who was nominated by President Reagan), the Court held that the term "hearing" merely meant whatever process Social Security used to render a decision, whether or not it involved an oral hearing. The Court held that there was good cause for the late appeal and that Ms. Boley should get her ALJ hearing. In doing so, the Court overturned its own precedent in Watters v. Harris, 656 F.2d 234 (7th Cir. 1980).

     In my opinion, Social Security had this one coming. You can say that Judge Easterbrook reached to construct the statute in the way that he did -- I think that the argument made by Ms. Boley's attorney that the dismissal was a denial of due process would have been the better route for the Court to follow to achieve the same result -- but the ALJ never should have dismissed the request for hearing and the Appeals Council never should have affirmed what the ALJ did. You can say that the attorney and client should have stayed in touch better and that the attorney shouldn't have allowed nine months to pass without checking on the case and you'd be right but that doesn't change the fact that Social Security's screw up was the primary reason for the late appeal. Late appeals because of Social Security's screw ups aren't rare. The reason you seldom see them in the federal courts is that almost always good cause is found for the late appeal. What the ALJ and the Appeals Council did in this case was just wrong. Defending this in the Court of Appeals or even in District Court was asking for trouble.

     I'm sure that there are many at Social Security's Office of General Counsel (OGC) who would disagree with me and say there is plenty of precedent supporting its position in this case. OK, if you feel that way, OGC, take this case to the Solicitor General. I dare you. The Solicitor General makes the decision for the federal government on whether to ask the Supreme Court to hear a case. The Supreme Court turns down the vast majority of requests to hear cases but this isn't just any case. This is exactly the kind of case that the Supreme Court usually does agree to hear because there is now a conflict between the 7th Circuit and other Courts of Appeal on the construction of a federal statute. I think it's close to automatic for the Supreme Court to hear a case like this when it's the Solicitor General making the request. OGC, do you think this is the sort of fact situation that the Solicitor General wants to take to the Supreme Court? For that matter, OGC, is this the sort of fact situation that you want taken to the Supreme Court? The ball is in your court, OGC. What are you going to do? I know, you'll ask for rehearing en banc but after that's denied, what will you do other than curse the Appeals Council for not remanding the case for a hearing on the merits when it had a chance?

Shutdown Questions

     Some questions about the shutdown, for anyone who can answer them:

• What was it like in the office when employees came in Tuesday to be officially told they were furloughed?
• Am I correct that the next scheduled payday for most federal employees is October 11? Whatever the date is, it's important. No federal civilian employee gets a paycheck until the shutdown ends, even if they've been working through the shutdown.
• What's it like for Administrative Law Judges (ALJs) and others working in mostly deserted offices?
• If you've been furloughed, how are you spending your time so far?
• Is there some word on the street about when or if the employees furloughed at the Office of Disability Adjudication and Review (ODAR) will be called back to work despite the shutdown? Is there any risk that instead of calling the other ODAR employees back that the ALJs will be sent home instead? I think we can all agree that it's impractical to have the ALJs working without support staff for more than a short time.
• Has there been a problem with claimants not showing up for hearings and appointments, thinking that Social Security is completely shut down?
• The Appeals Council receives lots and lots of faxes. The fax machines I'm familiar with print out received faxes. If the fax machine runs of paper, the fax machine stores the fax in its memory but that memory is finite. Faxes can be lost if the machine runs out of paper and memory. The faxes coming into the Appeals Council won't stop. Will there be someone there to stock the fax machines with paper? Is there sufficient memory to cover days, maybe weeks, of faxes?
• The Office of General Counsel (OGC) has to process lots of attorney fees under the Equal Access to Justice Act (EAJA). I'm afraid I know the answer, but will OGC be able to process these during the shutdown? More generally, how will OGC discharge its core responsibilities with something like 90% of its staff furloughed? There must be scheduled hearings, trials, settlement conferences, oral arguments, etc. Is OGC just getting all of these continued?
• For employees still at work, are there bottlenecks caused by the large number of furloughed employees?

Interesting OGC Opinion On Pardoned Prisoners

Here is an excerpt from an interesting opinion from Social Security's Office of General Counsel (OGC). At least I find it interesting.

QUESTION

You have asked whether a convicted felon who was pardoned by the Governor of Florida and released from confinement in prison is entitled to Social Security benefits for the time he was confined in prison.

ANSWER

We conclude the applicant is not entitled to re-payment of benefits suspended during his confinement in prison.