That Trump Executive Order On ALJs May Be Illegal

     You may recall that when the President issued an Executive Order changing the hiring process for Administrative Law Judges (ALJs) to allow agencies to hire with few formalities or limitations I raised the question of whether Trump's order complied with the Administrative Procedure Act (APA) which normally requires that proposed changes to regulations be published in the Federal Register for public comment before they can come into effect. I didn't pursue this issue since I assumed there had to be some obscure provision in the civil service laws that allowed the President to do this. Valerie C. Brannon of the Congressional Research Service (which is part of the Congress) pursued this issue and found that there are serious APA problems with the Trump Executive Order. I doubt that agencies will even try to hire ALJs under the new process.

     This Executive Order is an exemplar of the Trump Administration -- trying to heroically and simplistically solve difficult problems with the stroke of a pen while dissembling about the reasons for the actions that are taken (claiming the Order was a response to a Supreme Court decision when it wasn't), all coupled with incompetent execution. If Trump and those who work for him weren't such bumbling fools, he'd be a lot more dangerous.

Add This To The Long List Of Things That Gets Looked At If Democrats Control The House Of Representatives Next Year

     From the Virginian-Pilot:

Widows and widowers who were shortchanged on Social Security benefits by an estimated $131.8 million won’t get any of that money back, despite an Inspector General report calling for action.

Earlier this year, the administration’s Office of the Inspector General issued an audit report that determined the Social Security Administration underpaid 9,224 people over the age of 70. In addition, as more people in this group turn 70, the underpayment will amount to $9.8 million annually, auditors found.

The report said SSA officials agreed to “take action, as appropriate” for 41 beneficiaries it identified directly in the sample study and determine if it should review the records of more than 13,000 other beneficiaries. It also asked the administration to review its procedures and staff training for informing beneficiaries of their claiming options.

SSA has since provided “nationwide training” to field office workers about these survivor options and changed the language in application materials, said Darren Lutz, a Social Security spokesman.

It won’t, however, change anyone’s benefits retroactively based on the study.

“We reviewed the cases from the audit and determined they were adjudicated correctly, according to the law,” he said in an email. He declined to comment beyond the statement or make officials available to discuss the training. ...

     It really seems as if the Social Security Administration is acting as if Republicans will control the House of Representatives forever. It's a better than even bet that Democrats control the House of Representatives next year.

More Same Sex Marriage Litigation

     From the NM Political Report:

Anthony Gonzales met his future husband, Mark Johnson, at an Albuquerque gay bar, twenty years ago this month. Soon after, Gonzales and Johnson moved in and began their life together. In 2013, they made their union legally binding when they joined hundreds of other couples on Albuquerque’s Civic Plaza on the first day counties across New Mexico began legally recognizing same sex marriages. Almost six month later, 180 days to be exact, Johnson died of cancer.

Now, just weeks before his wedding anniversary, Gonzales has filed a federal civil suit against the U.S. Government’s Social Security Administration for the monetary benefits he said he is owed. The suit, filed in June, asks for Social Security survivor benefits or money usually paid out to a surviving spouse. But, the Social Security Administration requires couples to be married for nine months before a surviving spouse can collect those specific benefits from their deceased partner. That’s the case for Gonzales and thousands of others, even though the administration grants other exceptions for those who have been able to legally marry for centuries.

     The only other exception is for cases where the death was unexpected which, apparently, wasn't the case here since Mr. Johnson died of cancer.
     I regret that Mr. Gonzalez lost his husband. I regret that he wasn't allowed to marry Mr. Johnson until 2013 but this lawsuit is going nowhere.

Legislation Passes

     From Think Advisor:

The House Ways and Means Committee’s Subcommittee on Social Security and Tax Policy passed on Wednesday the “Social Security Online Tools Innovation Act,” H.R. 3309, which requires the Social Security Administration to provide online tools to help individuals assess their disability benefits.

The bill, which was reported to the full House, requires the Social Security commissioner to make publicly available online tools allowing individuals that are eligible for disability benefits “to assess the impact of earnings on the individual’s eligibility for, and amount of, benefits received through federal and state benefit programs.”

House Ways and Means Social Security Subcommittee Chairman Sam Johnson, R-Texas, announced the same day that he plans to hold a hearing on Wednesday to examine changes to the Social Security disability appeals process.

The hearing will examine recent and planned changes affecting the Social Security Administration’s disability appeals process, the metrics the SSA uses to evaluate process changes, and the progress the SSA has made to address the appeals backlog.

“Recently, the Social Security Administration made a major decision to change the disability appeals process in certain states that could have real-life consequences for Americans,” Johnson said in announcing the hearing. “A decision of this magnitude should be made by a Senate-confirmed commissioner, which we currently do not have. In the meantime, it is Congress’ duty to examine whether this change makes sense for disability claimants and taxpayers.”

     This piece addresses two issues. As to the first, here's the text of the bill, which I predict will have zero real world consequences:

Not later than 2 years after the date of the enactment of this Act, the Commissioner of Social Security shall make available through an individual’s account on the website of the Social Security Administration online tools to allow all individuals eligible for benefits based on disability under titles II and XVI of the Social Security Act to assess the impact of earnings on the individual’s eligibility for, and amount of, benefits received through Federal and State benefit programs.

      I have no idea why the Tax Policy Subcommittee would have had anything to do with this bill. 
     As to the second, it looks as if a major reason the hearing has been scheduled for next week is Congressional unhappiness about reinstating reconsideration in some states. If that's the case, how about we end reconsideration in all states?

Hard Edged Approach To Union

     From Government Executive:

Officials at the Social Security Administration informed the union representing administrative law judges Thursday that it is unilaterally implementing a new management edict, effectively voiding an existing collective bargaining agreement.

In an email to officials at the Association of Administrative Law Judges, SSA Associate Commissioner in the Office of Labor-Management and Employee Relations Ralph Patinella justified implementing a new unilateral CBA that made changes to nine contract provisions by saying the union ... “declined to bargain” on implementation of the Trump administration’s recent workforce executive orders.

But Marilyn Zahm, president of the Association of Administrative Law Judges, said nothing in the existing collective bargaining agreement requires them to engage in midterm bargaining on issues already covered by the CBA. The move by SSA comes just one day after the union filed an internal grievance over the unilateral implementation of executive order provisions governing official time.

Zahm said that on July 6, SSA informed her that the agency would immediately begin implementation of the controversial edicts, starting with a severe reduction in the amount of official time allowed for union employees, the refusal to grant official time to work on grievances and the end of agency subsidies for travel.

“I had to take personal leave last week for an already scheduled arbitration,” Zahm said. “And I went to the hotel to check in, and I found out that the reservation had been cancelled. The government cancelled my reservation right out from under me, and it wasn’t even being paid for with a government credit card.”

Among the changes to SSA union policy effective July 9 are a reduction in the so-called “bank” of official time available to the association as a whole between then and the end of September from 5,500 hours to 400. Official time also can no longer be used to represent employees in grievances. And the union will no longer be able to maintain office space on agency property after July 31. ...

Continued Decline In Social Security Workforce

     The Office of Personnel Management (OPM) has posted updated figures for the number of employees at the Social Security Administration:

• March 2018 61,487
• December 2017 62,777
• September 2017 62,297
• June 2017 61,592
• March 2017 62,183
• December 2016 63,364
• December 2015 65,518
• December 2014 65,430
• December 2013 61,957
• December 2012 64,538
• September 2011 67,136
• December 2010 70,270
• December 2009 67,486
• December 2008 63,733
• September 2008 63,990

     Did you fall for the fairy tale that a bigger appropriation to Social Security would result in better service? The increase in funding was slight and Republicans in Congress made sure that the increase would go to politically connected contractors instead of into hiring the personnel needed to get the work done. I think the attitude of Republicans in Congress to Social Security's ability to deliver service to the public ranges from indifference to an active desire to sabotage.

Eric Conn Client Getting "Three Hots And A Cot" But A Former Client Is Homeless

    From WYMT:

Thousands of former clients of Eric C. Conn have had their social security benefits taken away and are being scheduled for redetermination hearings to see if and when they can get those benefits back. While Conn is in prison with a roof over his head and food in his stomach one of his former clients is struggling to have even that. 

"I have nothing...I'm homeless right now and I have nothing," said Thomas Mullins.  ...

But nearly two years ago Mullins, who can not read or write, lost his benefits during a hearing where his only council was the Social Security Administration....

"They (Social Security Administration) told me I didn't need a lawyer and I went in front of them and they cut my benefits off without a lawyer," Mullins explained. ...

Mullins' oldest son, Jacob, says the situation has left his dad considering the unimaginable.

"I know that thoughts of suicide...he's talked with me about it..and it's just...I mean just hold on as long as you can," said Jacob Mullins.

Mullins says there is still hope as he has a redetermination hearing scheduled in September. ...

Congressional Hearing Scheduled On "Changes To Social Security Disability Appeals Process"

     From a press release:

House Ways and Means Social Security Subcommittee Chairman Sam Johnson (R-TX ) announced today that the Subcommittee will hold a hearing entitled “Examining Changes to Social Security’s Disability Appeals Process.” The hearing will focus on recent and planned changes affecting the Social Security Administration’s (SSA’s) disability appeals process, the metrics the SSA uses to evaluate process changes, and the progress the SSA has made to address the appeals backlog. The hearing will take place on Wednesday, July 25, 2018, in 2020 Rayburn House Office Building, beginning at 10:00 AM.

     Uh, what changes apart from the downturn in claims and appeals? I'm sure Lucia issues will be raised but that's not really a change in the "process."

Social Security Following Anti-Union Trump Orders With "Gusto, Joy And Clear Purpose"

     From Joe Davidson writing for the Washington Post:

President Trump's recent executive orders are a serious assault on federal labor organizations, but it is taxpayers who could become collateral damage.

Consider the Social Security Administration (SSA), which deals more directly with clients than most. It is on the front lines of the Trump-union clash, because officials there are enforcing his commands more aggressively than management at many agencies. Three orders issued in May sharply cut the time available for union officials to represent the workforce, restricted their ability to bargain collectively and sped the firing of federal employees. Another order, issued last week, would diminish administrative law judges, most of whom decide Social Security disputes involving recipients.

While the federal workforce and its representatives are the target of the orders, Social Security beneficiaries could be the victims, warned Max Richtman, president and chief executive of the National Committee to Preserve Social Security and Medicare. He said the impact on them is  pretty direct and dramatic.  Calling agency employees  so dedicated,  he said that  when they re faced with a pretty hostile employer in the government executive in particular, their ability to perform their central duty is undermined and that will lead to a detrimental impact on Social Security beneficiaries. ... [I]mplementation [of the President's orders] is more like imposition and has been done with a vengeance, according to Witold Skwierczynski, president of AFGE's National Council of SSA Field Operations Locals.  SSA followed the Trump administration's executive order  guidance  with gusto, joy, and clear purpose,  he said.

But the administration s gusto and joy is a bummer for Social Security employees and that could be a drag for Social Security recipients.

Richtman and Nancy Altman, president of Social Security Works and chair of the Strengthen Social Security Coalition, cited the effect of Trump's actions on employee morale and the resulting impact on service.

Altman is particularly concerned about Trump s order that devalues administrative law judges (ALJ) by eliminating all but the most minimal requirements for new hires. Additionally, they would be selected by agency heads without first being vetted by the Office of Personnel Management as was the procedure. That makes the process more vulnerable to politicization. ...

ABA Opposes Schedule E

     From FCW:

A House lawmaker is looking to block a July 10 executive order reclassifying administrative law judges outside of the competitive service under a new appointment authority dubbed Schedule E. ...

Rep. Bobby Scott (D-Va.) is offering an amendment to an appropriations bill to prohibit the use of Office of Personnel Management funds in implementing the order. ...

Hilarie Bass, president of the American Bar Association, is opposing the order and supporting Scott's amendment.

"By giving agency heads sole discretion to hire ALJs who will be making determinations affirming or overturning decisions rendered by that agency, the EO has the potential to politicize the appointment process and interfere with the decisional independence of ALJs," Bass wrote in a July 16 letter to the leaders of the House Rules Committee, urging the adoption of Scott's amendment. ...