Heading To The Supreme Court?

From Schafer v. Astrue (4th Cir. April 12, 2011):

Don and Janice Schafer married in 1992. Don died the next year. With the help of in vitro fertilization, however, Janice gave birth to W.M.S., Don Schafer’s biological child, a number of years later. Janice Schafer then applied on W.M.S.’s behalf for survivorship benefits under the Social Security Act.

The Social Security Administration rejected W.M.S.’s claim. Because under its view natural children must be able to inherit from the decedent under state intestacy law or satisfy certain exceptions to that requirement in order to count as "children" under the Act, W.M.S. was not eligible for survivorship benefits. See 42 U.S.C. §§ 416(h)(2), (h)(3)(C). The district court agreed. On appeal, Schafer contends that undisputed natural children such as W.M.S. plainly fall within 42 U.S.C. § 416(e)(1)’s basic definition of "child," making their state intestacy rights irrelevant.

We shall affirm the judgment. The agency’s view best reflects the statute’s text, structure, and aim of providing benefits primarily to those who unexpectedly lose a wage earner’s support. And even if the agency’s interpretation were not the only reasonable one, it falls well within the range of permissible readings entitled to deference under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).

This opinion is at odds with Gillett-Netting v. Barnhart, 371 F.3d 593, 597 (9th Cir. 2004) and Capato ex rel. B.N.C. v. Comm’r of Soc. Sec., ___ F.3d ___, 2011 WL 9368 (3d Cir. Jan. 4, 2011). The issue is also pending before the 8th Circuit Court of Appeals at the moment in Beeler v. Astrue.

This issue does not break down easily on liberal-conservative lines but we cannot completely dismiss that as an issue, especially when talking about the 4th Circuit Court of Appeals which has been highly ideological and right wing in recent years. The Shafer opinion was written by Judge Wilkinson and joined by Judge Agee. Judge Davis dissented. Wilkinson was appointed by President Reagan and Agee by George W. Bush. Davis was appointed by President Obama. A majority of the 4th Circuit's judges are now Democratic appointees. This is a dramatic change since President Obama took office.

I have not talked with the attorneys representing the mother and her child so what follows is just my speculation. I have to expect a motion for rehearing en banc, that is by all the judges on the Court. Rehearing en banc is uncommon but this is an uncommon case and the 4th Circuit is in transition. If the case is not reheard en banc or if it is reheard and the decision remains the same, I expect a petition for certiorari, that is a request that the Supreme Court hear the case. I would expect that petition for certiorari to be granted since the Courts of Appeals would be in disagreement on the issue and that normally gets a case heard at the Supreme Court.

Union Newsletter Contains Account Of Danville Assault

The American Federation of Government Employees (AFGE) union local that represents most Social Security employees has released its April 2011 newsletter, Unity, which contains this account of the recent assault at the Danville, VA Social Security field office:

In less than a minute, Anthony Burtt’s life changed forever.

A Service Representative in the Danville, Va. Social Security Office, he recently helped to subdue a man who allegedly stabbed security guard Jason Alsbaugh four times.

“I’d just come off break,” Burtt told UNITY, “and we were actually celebrating the guard’s birthday. I saw the suspect (Byron Clements) stab the guard in the neck and then I ran through the vestibule and hit the suspect in the head with my right elbow.”

In the melee that followed, a number of other people also came to Alsbaugh’s rescue, and Burtt remembers trying to get the guard’s handcuffs while Alsbaugh went to get medical help.

“He was bleeding pretty badly,” Burtt said. “He was really hurt!”

At that point, Clements apparently tried to run away, but Burtt hit him a second time with the back of his hand and the suspect fell to the ground, unconscious.

“Then he managed to get up again,” Burtt recalled. “He stood straight up and I was on top of him, and I’m a pretty big guy, so he was really strong.”

Clements then attempted another escape and it took three people to subdue him. He was eventually handcuffed, arrested by the police, and is now accused of malicious wounding.

Burtt, 38, is the Assistant Area Coordinator for AFGE. ...

Updated Fee Payment Numbers

Updated numbers from Social Security on payments of fees to attorneys and others who represent Social Security claimants. These fees come out of claimants' back benefits.

Year 2011

Fee Payments
Month/Year	Volume	Amount
Jan-11	34,467	$113,459,847.04
Feb-11	33,305	$107,796,771.38
Mar-11	34,885	$112,463,768.46

ALJ Leopold Dies

I regret to pass on the news that Administrative Law Judge Richard L. Leopold of Charlotte died this morning of an apparent heart attack while playing golf.

Bad Time For a 25th Anniversary?

The National Academy of Social Insurance (NASI) is planning a big celebration on June 8 for its 25th anniversary. There will be a dinner honoring Marty Ford, Director of Legal Advocacy at the Arc of the United States, Virginia P. Reno, Vice President for Income Security at the National Academy of Social Insurance, Wayne Vroman, Economist at The Urban Institute and James N. Ellenberger, President of the AFL-CIO Retirees Association.

NASI deserves to celebrate its anniversary and these fine folks certainly deserve to be honored but it is hard for someone who believes in the concept of Social Insurance to be in a celebratory mood at this point in our nation's history. The Social Security Administration's operating budget has been cut to the point that it is on a glide path to collapse. The whole concept of Social Insurance is under assault as never before. We are looking at serious Republican proposals to end Medicare, Medicaid and Supplemental Security Income. There are other proposals to dramatically cut Social Security and Unemployment Insurance benefits, almost certainly as a way station to ending them altogether. Many Republicans are pledging to do anything short of violence to achieve their ambitious agenda, including destroying the nation's credit.

The one thing that gives me hope is the conviction that Republican have greatly overreached and are bound for electoral disaster.

Bad Axe Service Gets The Axe

From the Huron, MI Daily Tribune:

BAD AXE — County officials learned April 1 the Social Security Administration no longer will send representatives to the county building on the second and fourth Tuesdays of each month to help residents with Social Security business.

“Because the administration is cutting back on travel, they no longer will be sending a representative twice a month to the court house,” explained Huron County Board of Commissioners Executive Secretary Jodi Essenmacher, who received notice April 1 that effective that day, Social Security Administration (SSA) representatives no longer would be coming to the county.

Instead, the county on Tuesday entered into an agreement to allow SSA to set up a video terminal to service county residents.

Winners And Losers

From the Washington Post:

The Congressional Budget Office estimate shows that compared with current spending rates the spending bill due for a House vote Thursday [and which just passed] would cut federal outlays from non-war accounts by just $352 million through Sept. 30. About $8 billion in immediate cuts to domestic programs and foreign aid are offset by nearly equal increases in defense spending.

Got that? Social Security got budget cuts that leave it barely functioning while defense spending went up.

House Social Security Subcommittee Hearing

Theresa Gruber, Social Security's Assistant Deputy Commissioner for Operations, testified today before the House Ways and Means Committee on Social Security number verification and identity theft. Her written testimony is now available.