Andrew Saul Sounds Bitter

      From a piece by former Social Security Commissioner Andrew Saul for Townhall.com, a right wing website:

Even though my time as the Social Security Administration (SSA) commissioner has ended, the partisan attacks on the agency and my record have not. Just this week, U.S. Reps. John Larson (D-CT) and Bill Pascrell (D-NJ) continued to repeat false claims about my tenure as SSA commissioner. ...

On April 21, 2021, I sent a letter to Rep. Larson outlining the need for additional  funding to make up for the budgetary and workforce challenges SSA was facing during the COVID-19 pandemic. Rep. Larson and the House of Representatives ignored this request and as a result, SSA was forced to operate on a budget that was $900 million less than I requested.  ...

The only solution to addressing the backlogs of unprocessed mail and other SSA services was to bring SSA workers back to the office. SSA informed Larson and his staff in August of 2020 we needed to start bringing union employees back to the offices involuntarily, but safely, to address workloads that couldn’t be done virtually, such as mail. Despite our warnings, on February 11, 2021, Rep. Larson and his staff objected to our putting a handful of employees in an office in Houston, Texas, to address problems similar to those noted in the recent SSA Office of the Inspector General (OIG) report. Rep. Larson insisted I call him, despite the fact he refused to take my calls when I was seeking assistance in funding. ...

It is hypocritical that Rep. Larson now faults me for backlogged workloads when he and his union bosses at SSA stymied my efforts to address these challenges.  ...

My office briefed Larson’s staff multiple times a week throughout the pandemic. If he had concerns with our response to the pandemic, he should have raised these issues to my attention or even offered to work with me to solve problems. His response then, as it is now, was to engage in political grandstanding and take his direction from the unions. Rep. Larson was the chairman of the House Subcommittee on Social Security the entire time I served as SSA commissioner. If he was so concerned about my management, why didn’t he hold an oversight hearing to address his concerns? He failed to hold a single hearing on the service challenges facing SSA. One might think he was negligent in his duties as Chairman and should resign, but I know he was afraid to allow real facts to come forward. For instance, he avoided my calls when I sought his support for funding and to get cooperation from unions. Rather than conduct meaningful oversight, Rep. Larson prefers to hide behind union talking points and issue uncontested press releases full of lies.

     Blaming Larson for Social Security's operating budget is mostly ridiculous. Larson isn't even a member of the Appropriations Committee that has jurisdiction over the agency's operating budget. The real problem was primarily in the Senate which was then controlled by Republicans. However, it is possible that if Larson had held hearings about Social Security's service delivery problems that the agency's appropriation might have been increased.

     By the way, why is Saul only now admitting that his agency was unable to provide adequate service and that the agency's operating budget was the main reason? I know that insulting people you need to work with isn't a good plan but being completely quiet in public about a severely inadequate agency budget isn't such a good plan either.

     Also, by the way, I'm glad that Saul is no longer making any effort to obscure the obvious -- he's a highly partisan Republican. That's how he ran the agency. That's why he had to be fired. He never should have tried to hang on after Inauguration Day.

AAJ Hearings To Remain A Possibility As CRA Resolution Fails

      In the twilight days of the Trump Administration, Social Security adopted new regulations allowing Administrative Appeals Judges (AAJs) to hold hearings on disability claims. Previously, only Administrative Law Judges (ALJs) were able to hold such hearings. AAJs have only handled cases pending on review at the Appeals Council. This has been concerning since AAJs, unlike ALJs, have not been thought to enjoy decisional independence.

     The Congressional Review Act (CRA) permits Congress to disapprove "midnight" regulations adopted as an Administration is leaving office. CRA resolutions may not be filibustered. A CRA resolution was introduced to disapprove the AAJs regulations. The problem with CRA resolutions is that they must be acted upon within a certain number of days. The computation of when the days start to run is a little tricky but, apparently, the time ran out yesterday but no action was taken on the CRA resolution on the AAJ regulations.

     I would be surprised to see any AAJ hearings scheduled in the near future. There's no plausible justification since there are enough ALJs to handle the current workload and Democrats control the White House, Senate and House of Representatives. Further out, who knows?

One Week Until New Musculoskeletal Listings Take Effect

      Unless something happens in the meantime to delay or prevent it, Social Security's new musculoskeletal Listings go into effect a week from today. If you haven't read them, they're more extreme than you can probably imagine. I've reproduced the Listings changes below -- just the Listings without the lengthy preambles. Judge for yourself. My opinion is that the public isn't going to be happy with these and that the current Presidential Administration will be blamed, which is exactly what was planned, I imagine. These certainly weren't rushed out while there was a Republican President. Click on each thumbnail to view full size.

More On The Efforts To Oust Saul

      From Yahoo News:

... According to two inspector general complaints filed in January of this year and reviewed by Yahoo News, an administrative law judge claimed that Saul, Black and their deputies put “illegitimate political pressure on Administrative Law Judges to reduce the rate of Social Security disability case approval.”

The whistleblower said the complaints were initially acknowledged by the inspector general, but they have yet to receive any further communication.

The SSA Office of the Inspector General did not immediately return a request for comment. ...

The complaints detail an example of Saul and Black's behavior by recalling a meeting in February 2020. Brian Blase, then special assistant for health to the Trump White House’s National Economic Council, met with management in the SSA’s Office of Hearings Operations to demand that the agency fire administrative law judges with high rates of disability claim approval. ...

According to [Alex] Lawson [of Social Security Works] and other sources familiar with conversations within the SSA, Biden’s four-person transition advisory committee attempted to put backstops within the agency to limit Saul and Black by installing union-friendly Democratic staffers. Scott Frey of the AFL-CIO joined as Saul’s chief of staff, and Kilolo Kijakazi of the Urban Institute replaced Trump administration-era deputy Mark Warshawsky as the deputy commissioner of the Office of Retirement and Disability Policy. ...

[Chairman of the Senate Finance Committee, Senator Sherrod] Brown said he has not yet personally asked Biden to fire Saul and Black, but his subcommittee staff is in regular communication with White House staff on the situation. Brown suggested that both he and Biden would prefer it if the two officials stepped down rather than having to be fired. He noted the lengthy legal fight either could take against the White House. ..

     Brian Blase certainly has a history of hostility to Social Security disability claimants. 

     By the way, while Saul might be able to fight being ousted, Black’s position has no such protection. I have no idea why he’s still there.

Unions Complain Social Security Dragging Its Feet On Implementing Biden Administration Directive To Re-Negotiate Contracts

      From Government Executive:

Nearly two months after President Biden rescinded a series of Trump administration anti-union directives and instructed federal agencies to bargain with labor groups over a much wider scope of issues, union officials said the leadership of the Social Security Administration still isn’t doing enough to comply with the new administration’s plans for labor-management relations.

On Biden’s third day in office, he signed an executive order that rescinded the Trump administration’s federal workforce policies and ordered agencies to engage in so-called “permissive bargaining,” a term that refers to a wide array of workplace issues that traditionally can be subject to negotiation only at the discretion of an agency head. But in the days and weeks that followed, many agencies failed to turn over a new leaf in the labor-management arena, saying they required additional guidance from their legal teams and the Office of Personnel Management.

On March 5, Acting OPM Director Kathleen McGettigan issued that guidance, and the message to agencies was clear: If you have implemented a union contract enforcing elements of President Trump’s workforce policies, you must reopen the agreement and negotiate with the union.

“In carrying out this task, agencies should take a hard look at the degree to which, if any, [the executive orders] influenced bargaining-table strategy and decision-making,” McGettigan wrote. “[Biden’s order] neither requires nor prohibits affected agencies from reopening CBAs on other matters not related to subjects covered by [the Trump orders].”

But in the intervening days, union officials at the Social Security Administration said that leadership at the agency have done the bare minimum to move toward compliance with the new order. ...

In a statement, agency spokesman Mark Hinkle said Social Security has begun a review of all of its union contracts and has asked for unions' "input," which it expects to complete by April 23. He said the agency is moving "enthusiastically" and at a "reasonable speed" to implement Biden's workforce order. ...

On Monday, officials at Social Security sent a copy of the agency’s new COVID-19 workforce safety plan to union officials just two hours before publishing it for the entire workforce. Negotiations regarding the policy would only be allowed “post-implementation.” The executive order mandating the safety plan requires agencies to “promptly consult” federal employee unions on the plan’s implementation. ...

[American Federation of Government Employees Council 220 President Ralph ] DeJuliis said that in the end, the agency’s recalcitrance was unsurprising.

“My first local president when I joined the agency in 1979 laughed and told me, ‘There are two ways of doing things: the right way, and the SSA way,’” he said. “Forty years later, and there are still two ways of doing things: the right way, and the SSA way. SSA relishes in doing it the wrong way, and then it tries to make the victim the person who is at fault. Any time I talk to any attorney on federal sector cases, they say the worst agency to deal with is SSA.”

New Musculoskeletal Listings To Go Into Effect In Less Than A Month Unless Blocked

      The harsh new musculoskeletal Listings are scheduled to go into effect on April 2. The Biden Administration could delay implementation or even kill these changes altogether. However, there has been no sign so far of anything that would derail the new Listings. 

     I fear that these changes now seems too much like mere housekeeping. I don't think they will seem that way if implemented.

     I'm curious. Has Social Security been training staff on the new musculoskeletal Listings?

Ways And Means Leaders Call For Saul’s Removal

      From a press release:

Today, House Ways and Means Social Security Subcommittee Chairman John B. Larson (D-CT), Worker and Family Support Subcommittee Chairman Danny K. Davis (D-IL), and Oversight Subcommittee Chairman Bill Pascrell, Jr. (D-NJ) called for the immediate removal of the Commissioner of Social Security, Andrew Saul, and the Deputy Commissioner, David Black, who were both appointed by former President Trump. ...

     Sending out press releases is nice but any of these Subcommittee heads can hold an oversight hearing and demand that Saul testify so he can be roasted. Firing him is one way of getting rid of him. Pressuring him to quit is another.

     I wonder what’s going on behind the scenes. Is the Biden Administration torn about what to do about Saul? Is this press release just a meaningless bow to employee unions?

“Kick Them Laterally To The Associate Commissioner Of Recycling”

      From Government Executive:

Officials at the nation’s largest federal employee union said that they have seen little progress from agencies in the days since President Biden signed an executive order rescinding Trump administration edicts on labor-management relations last week. ...

Ralph de Juliis, president of AFGE’s Social Security Administration Council, said he has seen a similar reluctance to move forward with the implementation of Biden’s order rescinding the previous president’s workforce policies.

“At SSA, we already sent the executive order to the agency and said that we wanted to return to the table, and Jim Julian, the associate commissioner for labor-management and employee relations, responded by saying, ‘Good point, we’ll talk about this on our February call,’” de Juliis said. “And earlier today, I sent the recent order from [the Occupational Safety and Health Administration] on COVID and social distancing, and I sent it to various SSA people who had given me floor plans on how they plan to squeeze us into cubicles [when we return to the office], and I asked, ‘How are you going to redo the floor plan?’ And the answer we got back was, ‘We’re not doing anything yet, we need to wait until we’re told what we can do.” ...

de Juliis said that, at least at the Social Security Administration, that relationship with the current labor-management officials can never be mended. AFGE’s council of unions at the agency, along with other labor groups and advocates, have called on the Biden administration to force Commissioner Andrew Saul and Deputy Commissioner David Black to resign before their terms expire in 2025.

“[The officials] in the labor-management office have to go,” de Juliis said. “They’ve overseen the discipline of too many union officials during the pandemic, of too many employees. The trust cannot be restored . . . Employees are held accountable and held responsible, while leaders are being given a pass, and they cannot be given a pass. There’s no working with these people, so get rid of them, kick them laterally to the associate commissioner of recycling or something, but just get them out of dealing with labor relations.”

"Acting" Commissioner?

      More and more questions are being asked about Andrew Saul's status. What is this "Acting Commissioner" business? If he's only Acting, why hasn't he been fired? Biden would surely prefer someone else as Commissioner. This cute business of trying to have it both ways -- Seila Law has nothing to do with the Social Security Administration yet its confirmed Commissioner is now only its "Acting Commissioner" so you can't apply Seila Law to us isn't going to last forever. This isn't clever. It just underlines the extent of the agency's Seila Law problem. The only solution is for Saul to leave voluntarily or be forced out.

No Comment

      From the Washington Post:

... Andrew Saul, a Trump appointee whose six-year term as Social Security commissioner officially ends in 2025, had a curious new “acting” title on a list of temporary government leaders distributed by the new White House last week. Saul announced Thursday that several high-ranking deputies on his team, who had pushed for stricter eligibility for benefits, had been replaced — with labor-friendly Democrats. The Security Administration did not respond to a request for comment about the acting title. ...

Elections Have Consequences

      In accordance with a White House directive, all proposed Social Security regulations that were awaiting approval at the Office of Management and Budget have been withdrawn. These include proposed regulations on the timing and frequency of continuing disability reviews and proposed regulations that would have modified the age categories used in determining disability.

Could Musculoskeletal Listing Changes Be Reconsidered?

      The harsh new musculoskeletal Listings are scheduled to go into effect on April 2. However, the change of Administration could delay implementation or even kill these changes altogether. Soon after taking office, Biden's Chief of Staff sent a memorandum to agency heads giving them this directive:

... With respect to rules that have been published in the Federal Register, or rules that have been issued in any manner, but have not taken effect, consider postponing the rules’ effective dates for 60 days from the date of this memorandum ... for the purpose of reviewing any questions of fact, law, and policy the rules may raise.  For rules postponed in this manner, during the 60-day period, where appropriate and consistent with applicable law, consider opening a 30-day comment period to allow interested parties to provide comments about issues of fact, law, and policy raised by those rules, and consider pending petitions for reconsideration involving such rules.  As appropriate and consistent with applicable law, and where necessary to continue to review these questions of fact, law, and policy, consider further delaying, or publishing for notice and comment proposed rules further delaying, such rules beyond the 60-day period.  Following the 60-day delay in effective date:

a. for those rules that raise no substantial questions of fact, law, or policy, no further action needs to be taken; and 

b. for those rules that raise substantial questions of fact, law, or policy, agencies should notify the OMB Director and take further appropriate action in consultation with the OMB Director. ...

     The musculoskeletal Listings certainly raise substantial questions of policy, if not fact. Even though their effective date is more than 60 days after this memo, it would certainly seem that they should be subject to additional review and that there should be a new comment period. I would expect that there will be "requests for reconsideration" of the Listings. These new musculoskeletal Listings are not mere housekeeping. They were and remain a highly controversial attack on disability claimants.

     By the way, those proposed regulations that would have increased the number of continuing disability review and that would have modified the grid regulations may not have been officially withdrawn yet but they're dead.

What Just Happened?

      Below is the memo that came out yesterday about personnel changes at Social Security. Click on it to view it at full size.

 

     Andrew Saul, whose term as Social Security Commissioner has been marked by strident anti-union activity, bringing in a union official as his Chief of Staff? Mark Warshawsky ,who has apparently been a consistent advocate for right wing policies, replaced by a fellow at the left leaning Urban Institute?

     But that's not all. Yesterday afternoon, the White House released a list of acting heads of federal agencies and Andrew Saul was listed as the acting head of the Social Security Administration. I thought that Saul believed himself to be the confirmed Commissioner of Social Security, legally entitled to serve out his term of office which runs until January 2025. Unless Saul resigned and was then appointed Acting Commissioner, something which hasn't been announced, the White House announcement can't be technically accurate, although it may reflect the essential nature of the situation. By the way, the memo shown above indicates that it was signed by the Commissioner rather than the Acting Commissioner.

     I'm sure that many readers of this blog have tuned out what I've written about the Supreme Court opinion in Seila Law v. CFPB but it's key to understanding what's going on. In that case, the Supreme Court held that the position of the head of the Consumer Finance Protection Bureau was unconstitutional because the incumbent served a fixed term of years and could only be fired by the President for cause. That sounds exactly like the Commissioner of Social Security. The position of Commissioner of Social Security wasn't before the Court. The attorney for Seila Law argued that there was a distinction between the head of the CFPB and the Commissioner of Social Security but it seems doubtful that the Court will buy that argument once a case squarely presents the issue. 

     I think we may surmise that there was a negotiation between Andrew Saul and President Biden's transition team and yesterday's announcements were the result. I don't understand why Saul wants to hang around to do the bidding of an Administration whose policies he must disagree with but he does.

     So where does that leave the Seila Law litigation that the Social Security Administration is facing? What's Social Security's position? Seila Law totally doesn't apply to cases in the pipeline because Social Security is so much different than CFPB but it can't apply to any future cases because the White House now considers Andrew Saul the Acting Commissioner of Social Security even though Saul himself hasn't announced that he regards himself as serving at the pleasure of the President? That seems like an incoherent position.

     By the way, I've heard an anecdotal report from one attorney that Social Security has recently asked for voluntary remands in all the cases he had in federal court where he was arguing Seila Law. Has anyone else seen this?

Didn’t See This Coming

      More on this tomorrow but take a look at what has to be the weirdest personnel memorandum in Social Security history.

Goodbye, Trump

 

"Bold Vision"?

      From Policy Pillars and Priorities: A Bold Vision for a Legislative Pathway Toward Health and Economic Equity issued this month by Richard Neal, the Chairman of the House Ways and Means Committee:

... The framework we present here is Ways and Means Committee Democrats’ plan to make our nation a more just and equitable place. ...

Congress must do more to help American families, especially minority families, have a secure and dignified retirement. Social Security provides the foundation of retirement security, and its benefits must be strengthened and improved, particularly for low-wage workers. Social Security disability benefits must be protected against harmful attacks.  ...

Policy Approaches 

•Strengthen and improve Social Security benefits, particularly for low-wage workers 

•Protect Social Security disability benefits from harmful regulations and other attacks designed to reduce access to benefits ...

     As far as Social Security goes, that's all there is in this document. Note that there's no legislative action even suggested as far as Social Security disability benefits go and only the vaguest suggestion that something unspecified might be done more generally to "strengthen and improve Social Security benefits." SSI isn't even mentioned.

     Perhaps I shouldn't be critical. Perhaps this is meant to be something similar to the vapid "mission statements" that many corporations and organizations pointlessly struggle to put out but, honestly, I don't see even a hint of boldness in this document, at least as far as Social Security is concerned.

Saul Mum As Outside Groups Plan Press Conference

     From a press release issued by Social Security Works:

This Tuesday, Jan. 12th at 2pm ET, unions representing Social Security Administration (SSA) employees and advocates representing Social Security beneficiaries will hold a virtual press conference calling on Joe Biden to clean house by removing all of Donald Trump’s political appointees from SSA on day one of his presidency. The press conference will air live on the Social Security Works Facebook page. ...

Who:

• Ralph de Juliis, President of AFGE Council 220
• The Honorable Melissa McIntosh, President of the Association of Administrative Law Judges
• Matthew Biggs, Secretary-Treasurer of the International Federation of Professional & Technical Engineers
• Alex Lawson, Executive Director of Social Security Works ...

      It seems to me that if I were Andrew Saul and I were planning to hang around as Commissioner, I would have put out a press release sometime in the last two months congratulating Joe Biden and expressing an intention to work with the Biden Administration. If I weren't planning on hanging around, I think I would have already put out a press release saying that I was resigning on a specific date. Neither has happened. I don't know what the lack of any press release means. Maybe somebody should ask Saul what it means, like a reporter seeking a comment on this press conference.

Unions Unanimous In Wanting Saul Gone

      From a press release:  

The American Federation of Government Employees (AFGE) and International Federation of Professional and Technical Engineers (IFPTE) joined together today calling for the ouster of Social Security Administration Commissioner Andrew Saul and Deputy Commissioner David Black. The joint effort comes on the heels of last month’s overwhelming votes of no confidence in the SSA leaders by the members of AFGE Council 220, National Council of SSA Field Operations Locals,and IFPTE Judicial Council 1, the Association of Administrative Law Judges (JC1/AALJ). ...

Whither Saul?

      The nearest comparable situation to the one we have now with the Commissioner of Social Security holding over or not holding over into a new Administration was in 2008 after the election of Barack Obama. Then Commissioner Astrue was the first Commissioner confirmed to a fixed term in office. He had been nominated by a Republican President. Astrue's term extended into Obama's term. After Obama was elected I heard at least one person in a position to know say that there was no way Astrue could stay on after Obama took office. We didn't hear anything for more than a month after election day. However, on December 11, 2008 I was able to post about an interview that Astrue had given where he said he would stay in office during the Obama Presidency. We're further along than this in December and I have not heard a word aboutAndrew Saul's plans.

     This situation is not completely the same as before. Astrue was acknowledged by all as competent; Saul, not so much. Astrue had stepped on some toes but not nearly to the extent of Andrew Saul, who seems to have gone out of his way to offend, particularly to offend employee unions which are an important Democratic constituency. Democrats definitely want Saul out. There is the issue now of whether Saul can be fired without cause. That constitutional issue had not emerged in 2008.

     I don't know what's going to happen but it's surprising to me that Saul hasn't either said he's leaving soon or taken some action to let it be known that he's going to try to hang on.

No Answer From Saul Or Biden Transition On Commissioner Position

     Joe Davidson at the Washington Post has devoted a column to the effort to get Andrew Saul fired as Social Security Commissioner. It's clear that Davidson doesn't understand the constitutional issue involved but he does detail the pressure to get Saul out. Of interest to me in the column was this sentence: "Neither the agency nor Biden’s team responded to requests for comment." I have to guess that things are still up in the air.

     By the way, as I've asked before, when will the Post retire that same tired photo they've been using for years to illustrate articles having to do with the Social Security Administration?