So What Kind Of Pumpkin Did Social Security Turn Into At Midnight?

Yeah, I know, I'm mixing metaphors. So?

     I've been looking at the Federal Vacancies Reform Act of 1998.  Here's what I've discovered.

     Under 5 U.S.C. §3345 upon a vacancy in an office that requires Senate approval, the President can designate a person to serve as an acting officeholder. If the President doesn't make such a designation, the "first assistant" to the departed officeholder becomes the acting officeholder. In the case of the Social Security Administration, President Obama established a plan of succession. President Trump could have altered that plan but didn't. Under that plan, Nancy Berryhill became acting Commissioner. However, under that statute there can only be an acting officeholder up to certain time limits and 5 U.S.C. §3347 makes it clear that there is no other process by which a person can become or stay an acting officeholder beyond those time limits.  Everyone is in agreement that that time period has passed for the office of Social Security Commissioner and that office is vacant.

     Once the time period has passed, 5 U.S.C. §3348(b)(1) says the office and the functions and duties of that office remain vacant until someone can properly qualify to become the officeholder. Under 5 U.S.C. 3348(a)(2)(A) the functions or duties of an office are defined as those established by statute and "required by statute to be performed by the applicable officer (and only that officer)." That means that Administrative Law Judges and Appeals Counsel members and other Social Security employees who are performing previously delegated duties are able to continue to perform their previously delegated duties during the vacancy of the office of Commissioner of Social Security. So can just about any other employee.

     However, what about duties that had not previously been delegated? Even though there's nothing in the statutes that would have prevented the Commissioner or Acting Commissioner from delegating essentially any of the duties of the office, I don't see how there's anybody available now to further delegate any duties.
     I don't think there's any published list of duties that the Commissioner of Social Security has and hasn't delegated. Probably, there's always been some fuzziness about this since it's not possible to know in advance every novel issue or circumstance that might come up. Here would be my best guess of some duties that would never have been delegated under normal circumstances:

• Firing, replacing or disciplining senior level employees
• Coordinating the activities of the various offices and individuals who report directly to the Commissioner 
• Deciding upon internal budget allocations
• Deciding upon staffing level and overtime allocations for Social Security's various parts
• Approving contracts over some predetermined dollar amount
• Approving agreements with employee unions
• Signing off on proposed or final regulations
• Settling major litigation
• Approving statements made to Congressional committees
• Approving requests for legislation or agency comments on pending legislation

     It is possible that Nancy Berryhill made some last minute delegations before her authority as Acting Commissioner expired so that there could be better continuity. If there were any such extraordinary delegations, I think it behooves Social Security to announce them.

    In any case, Social Security was already somewhat rudderless with Nancy Berryhill as Acting Commissioner (not that it was her fault) and is even more rudderless now. How rudderless may depend upon whether Nancy Berryhill made some extraordinary delegations of authority while still Acting Commissioner. There's also the question of how well those at the top at Social Security will work together with no one really in charge -- the "you're not my real mommy" problem if you will.

I Think She's Got A Point

     From a letter from Congresswoman Gwen Moore (D-Wis) to Social Security's Acting Inspector General (although, for the same reason that there's no Acting Commissioner of Social Security I think there's no Acting Inspector General):

I am writing regarding the anticipated closing of the “Mitchell St.” Social Security Administration (SSA) Field Office at 1710 S. 7th St. Ste. 200, Milwaukee, WI 53204.
My office was first notified that the Mitchell St. Field Office would be closing on January 9, 2018. It was explained to my staff that the current office location had numerous health and safety concerns which necessitated closing the office....

As noted in SSA policies and procedures for closing and consolidating field offices, “At least 180 days prior to the proposed consolidation date, we will notify the public about any field office consolidation proposal and include a 30 day comment period.” As stated above my office was first notified on January 9, 2018, less than two months prior to the anticipated consolidation. Based on information received from SSA and the General Services Administration (GSA), SSA began the process of looking for an alternative site in late 2015; over two years ago. Per the above requirements, SSA had both the ability and the opportunity to notify my office and the public at large of its anticipated actions. ...

TV Station Picks Up On Story Of Elderly Man Being Thrown To Ground At Phoenix Field Office

     A local television station has picked up on the story of a security guard throwing an elderly man to the ground at a Social Security field office in Phoenix. Neither the guard nor the elderly man are identified.

Social Security Field Office Closed By Anthrax Hoax

     From the Leesburg, Florida Daily Commercial:

Police and firefighters converged on two Lake County offices Wednesday to investigate suspicious packages, although one quickly proved to be a hoax.

Members of Lake County’s Hazardous Materials unit responded to the Lake Emergency Medical Services office on Old U.S. Highway 441 in Mount Dora early Wednesday afternoon after a “white powdery substance” arrived there by mail, according to City of Mount Dora spokeswoman Lisa McDonald. ...

12 employees who came in contact with the letter were temporarily quarantined while the Hazmat team tested the substance, but the team soon determined the substance was not hazardous.

At the same time, the Social Security Administration building in Leesburg was temporarily closed after employees received another suspicious package. Leesburg police did not immediately know what kind of package it was or how it arrived but said they were waiting for the Hazmat team to finish in Mount Dora and come investigate the suspicious substance there.

The scares were the latest in a series of such hoaxes dating back to last year.

Early in 2017, the Daily Commercial received a letter that threatened the life of President Donald Trump, and another mailed to the paper in December contained white powder inside a folded piece of looseleaf paper with the word ANTHRAX written across it. Lake County Fire Rescue’s hazardous materials team responded to the newspaper and determined that the substance was baking powder.

Then on Jan. 29, three letters — presumably from the same person — arrived at three locations in Leesburg: the Daily Commercial, Bank of America on North 14th Street and Florida Heart & Vascular Center on Dixie Highway, across from Leesburg Regional Medical Center. It was the second time the bank had received one of the letters.

No harmful substances were in those letters.

No Acting Commissioner Means No Changes in Regulations And Who Knows What Else?

     I couldn't figure it out. The Office of Management and Budget (OMB) approved a Notice of Proposed Rule Making (NPRM) of new musculoskeletal Listings for Social Security on February 16, 2018. Normally, once a proposal like this is approved by OMB, it gets published in the Federal Register within a week or so but this one still hasn't shown up in the Federal Register. 

     I think I know the reason for the delay. The NPRM needs the signature of the Commissioner or Acting Commissioner of Social Security. There's nobody to sign off on the NPRM since there's no valid Acting Commissioner.

     Social Security isn't going to be able to propose, much less finalize, any changes in its regulations until this Commissioner business gets resolved.
     And, while I'm thinking of it, can Social Security even take a position in litigation with no one running the show? Maybe they do if there's a valid General Counsel at Social Security but we probably have exactly the same problem there as exists with the Commissioner position.  The agency has a few thousand cases pending in the federal courts.
     What about contracting? Can the agency sign any contracts?
     What about personnel actions?
     By the way, by statute, the Commissioner of Social Security is supposed to put forward its own proposed budget for the agency in addition to the President's proposed budget. The President's budget for FY 2019 came out recently but I don't believe there was ever a budget from Social Security. I think I now know the reason.
     And one last question, what about the Appeals Council and Administrative Law Judges? They operate on a delegation of authority from the Commissioner. Without a Commissioner, do they have authority to act? If that seems outlandish, take a look at this Supreme Court opinion which dealt in passing with the question of delegated authority when there was no one validly occupying the position whose responsibility was delegated. 

     I'm wondering if we might get a recess appointment of a caretaker Commissioner to tide us over until next January. That would avoid the lengthy confirmation process for someone whose term of office would only last a few months. Of course, that would make sense, so it probably won't happen with Donald Trump as President. Social Security is saying they've known about this problem at least since last November. You have to assume that they have alerted the White House back then if not much earlier. It's several months later and the White House has done nothing. What does that tell you about the level of functioning in the Trump White House? At least Mussolini got the trains running on time.

No Further Pretense

     A message from Nancy Berryhill to Social Security employees:

From: ^Internal Communications 

Sent: Wednesday, March 07, 2018 3:20 PM 

Subject: A Message from Nancy Berryhill A Message To All SSA Employees

Subject: A Message from Nancy Berryhill

On January 20, 2017, I was honored to become the Acting Commissioner of the Social Security Administration. Starting with Social Security 41 years ago as a summer aide, the vital mission of this agency has always fueled my passion for public service. Yesterday, the Government Accountability Office, who is responsible for monitoring the timelines for vacancies in certain Federal government positions, determined that a limitation of 300 days applied to the Acting Commissioner. Out of an abundance of caution, the agency had already taken steps in November 2017 to ensure that agency operations continue uninterrupted. 

Moving forward, I will continue to lead the agency from my position of record, Deputy Commissioner of Operations. Throughout my career, I have learned that position titles come and go, but what truly matters is the people we serve every day. Beyond the change in title, there will be no impact in our service to the American public. Now, as always, I look forward to continuing to focus on the mission of the agency. ...

     What steps were those that Social Security took in November 2017?

Does This Mean That Nancy Berryhill Is Now The Acting Acting Commissioner Of Social Security?

     Below is most of a letter from the General Counsel of  the Government Accountability Office to the Chairman of the House Ways and Means Committee (footnotes omitted). Note the last sentence which I have bolded:

Pursuant to section 3349(b) of title 5 of the United States Code, we are reporting a violation of the Federal Vacancies Reform Act of 19981 (herein "the Vacancies Reform Act" or "Act") at the U.S. Social Security Administration (SSA) with respect to the Commissioner position. Specifically, we are reporting that the service of Nancy A. Berryhill as Acting Commissioner at SSA after November 17, 2017, is in violation of the Act.

The Vacancies Reform Act establishes requirements for temporarily authorizing an acting official to perform the functions and duties of certain vacant positions that require Presidential appointment and Senate confirmation. The Act generally limits the period of time that such a position may be filled with an acting official to 210 days. 5 U.S.C. § 3346(a)(1). In the year of a transitional Presidential inauguration, that time period is extended to 300 days after the vacancy occurs with respect to any vacancy that exists during the 60-day period beginning on the transitional inauguration date. 5 U.S.C. § 3349a(b). Under the provisions of section 3349(b), the Comptroller General is required, upon a determination that an acting official has served longer than the allowable period of service, to report such findings to Congress, the President, and the Office of Personnel Management.

In response to our recent inquiry to all federal departments and agencies with positions subject to the Vacancies Reform Act to update the status of any vacancies, acting officials, or nominations, the General Counsel of SSA reported that the position of Commissioner remains vacant.2 Our research indicates that the position was vacant on January 20, 2017, and Nancy A. Berryhill became Acting Commissioner on January 21, 2017. To date there have been no nominations submitted for that position. According to SSA, Ms. Berryhill became Acting Commissioner pursuant to a memorandum of December 23, 2016, issued by President Obama establishing an order of succession for the performance of the functions and duties of the office of the Commissioner of Social Security (Memorandum of Succession). We note that the Memorandum of Succession specifies that its provisions are subject to the limitations of the Vacancies Reform Act.

In accordance with the Vacancies Reform Act, the 210-day period began to run 90 days after the vacancy occurred on January 20, 2017-on April 20, 2017-and ended on November 16, 2017. Thus, the position of Commissioner should have been vacant beginning November 17, 2017. SSA's website indicates that Ms. Berryhill continued serving as Acting Commissioner after November 16, 2017. We have previously determined that using the acting title of a position during the period in which the position should be vacant violates the time limitations in the Vacancies Reform Act. Therefore Ms. Berryhill was not authorized to continue serving using the title of Acting Commissioner after November 16. However, SSA can provide for performance of the delegable functions and duties of the Commissioner position in accordance with the Memorandum of Succession or other applicable authority. ...

     There will be a House Social Security Subcommittee hearing on this issue today.
     I've already been asked if there will be litigation on this. Maybe I lack imagination but I've not been able to think of anyone who would have standing to raise the issue.
     Attorneys who sue Social Security now have a problem. When we sue the agency, we are supposed to sue the Commissioner or Acting Commissioner by name. That's why Nancy Berryhill is the defendant in thousands of lawsuits. Who is now the proper defendant? I should say that this is a technicality that doesn't affect the validity of any lawsuit.
     Don't blame Nancy Berryhill for this. I doubt that she ever wanted the job even temporarily. She's a career employee. They generally try to avoid the limelight. The responsibility for this lies with President Trump.
     Don't expect Trump to nominate anyone soon. The current term for a Commissioner ends in January 2019. By the time anyone was confirmed now, their term would almost be at an end and they'd have to go through the confirmation process again.

A New SSA-1695 Process

     From an update issued yesterday to a Social Security Emergency Message: 

We are revising EM-12004 REV 3 to update the processing steps of the form SSA-1695 (Identifying Information for Possible Direct payment of Authorized Fee) as they will take place in RASR. ... 

We are revising this EM policy to reflect that effective immediately, we will no longer send manual acknowledgement notices to representatives after processing the SSA-1695, since RASR release 1 will send this notice automatically. In addition, we will no longer redact and fax the processed SSA-1695 into the electronic folder (EF). Instead,we will properly dispose of the form, since the acknowledgement notice sent automatically by RASR will serve as our record of the processing. ...

     I don't know what RASR stands for. 

     The bottom line is that Social Security is altering its process for recording the fact that an attorney is representing a claimant. I always cringe when Social Security makes this sort of change. Any alteration in this sort of process is disruptive. We can hope the disruption will be favorable -- easier processing for Social Security with fewer mistakes -- but in the short run there's probably a greater potential for mistakes.