Briefs Filed In Lucia Case

     All of the amicus briefs, 23 of them, have been filed in Lucia v. S.E.C., the case pending before the Supreme Court on the question of whether Administrative Law Judges (ALJs), as presently appointed, are constitutional, at least at the S.E.C.
     Many readers will be interested in the amicus brief filed by the National Organization of Social Security Claimants Representatives (NOSSCR). It argues that if the Supreme Court is going to find S.E.C. ALJs unconstitutional, it should distinguish Social Security ALJs on the grounds that the cases they hear are non-adversarial. That's the argument NOSSCR pretty much has to make.
     The amicus brief that I like best is one filed by a group of 29 law professors who teach and write about administrative law. That brief calls upon the Supreme Court to be pragmatic. It gives a wider and deeper administrative law perspective largely absent from all the other briefs filed in the case. Here are a couple of excerpts:

The Court’s holding and approach in this case have major implications for the adjudicative structure of the federal government. If the Court were to apply the Tenth Circuit test [that found ALJs to be unconstitutional] to the five SEC ALJs as the basis for a holding that they are inferior officers, federal courts would be required to apply the same test to the 1,926 ALJs who perform analogous functions at other agencies. And it would almost certainly trigger similar challenges to decisions made by the thousands of non-ALJ adjudicators (often referred to as administrative judges or AJs) who perform analogous functions at other agencies. Together, ALJs and AJs preside at hearings in millions of adjudications each year.

If, as seems likely, that iterative process yielded a series of holdings that many thousand federal employees with responsibilities that include presiding at hearings are inferior officers, federal courts would then have to decide what to do about the cases that have been the subject of hearings presided over by those unconstitutionally appointed officers. Courts would also have to decide whether the statutory restrictions on removal of the members of this large new class of inferior officers are constitutional, an issue not before the Court in this case. The point, however, is that the stakes are sufficiently high to justify a judicial approach that preserves as much as possible the congressional design to check agency power through the use of ALJ. ...

The claims that SEC ALJs are biased in favor of the agency echo the widespread claims of bias that provided the impetus for Congress’s decision to enact the APA [Administrative Procedure Act, which led to the creation of the ALJ position]. That statute reduced significantly the potential for ALJ bias in the process of presiding over agency adjudications. Ironically, the claims of bias spawned by the SEC’s decision to bring some enforcement actions before ALJs, rather than federal district judges, have been coupled with the argument that SEC ALJs should be appointed by the agencies where they preside and should be removable at will by the agencies where they preside. 

It is hard to imagine a worse fit between an alleged problem in decision-making and a proposed remedy for that problem. If this Court makes a decision that cascades into a legal regime in which agencies have greater discretion in the process of appointing ALJs and have the discretion to remove ALJs without establishing any cause for removal, it will have eliminated many of the safeguards against pro-agency bias that Congress incorporated in the APA and that this Court praised as important mechanisms to protect the due process rights of the private parties who participate in agency hearings. That, of course, would increase the risk that SEC ALJs will make decisions that reflect pro-agency bias in their roles as presiding officers. ...

National Disability Forum

     From the Social Security Administration:

Social Security’s National Disability Forum is April 18 at 1100 New York Avenue in Washington D.C. The Disability Forum gives all interested stakeholders an opportunity to share their unique insights on topics of particular interest to Social Security. This allows an exchange of ideas early in the process and directly with policy makers.

With the theme of Financial Independence: Directing the Management of One’s Social Security Benefits, the forum will serve as a listening session that brings public awareness to disability and retirement policy stakeholders. Through this dialogue, we will gain insight into how our representative payee policy affects the disability and retirement communities we currently serve and the potential affect it may have in the future.

You and your clients can learn more at www.socialsecurity.gov/thirdparty/whatsnew.html.

Phishing Scheme Aimed At Social Security Disability Recipients

     From a television station that wants to be known as "News 6":

Florida residents who receive Social Security disability benefits are being targeted by imposters who claim their accounts have been hacked and  their SSN assets have been frozen. ...

Acting Inspector General Gale Stallworth Stone issued a statement on March 2 saying in part, “This phishing scheme is targeting unsuspecting persons for the purpose of Social Security benefit theft or identity theft.” ...

American Greed: Eric Conn

     CNBC will be airing an episode of its series American Greed dealing with the weird case of Eric Conn tonight at 10:00 pm Eastern and Pacific. 

     I've heard a rumor that someone is working on a separate documentary film on Conn.

Happy Easter!

Conn's Idiot Assistant Pleads Guilty

     From the Washington Times:

A man who helped the orchestrator of the largest Social Security fraud in U.S. history cut off his ankle bracelet and flee the country pleaded guilty Friday to his role in the escape, admitting he’d spent months working to set it up. 

Curtis Lee Wyatt had been the muscle for Eric C. Conn, a Kentucky lawyer who authorities say ran a fraud ring that totaled well more than $1 billion in bogus Social Security disability claims. ... 

Wyatt, 48, assisted along the way, helping arrange the getaway car and making test-runs to see which border checkpoint would be the easiest for his boss to escape through on his journey out of the U.S. 

Wyatt also arranged for Conn to have a Faraday bag — the device that allowed him to shield his ankle bracelet when he cut it off, this avoiding detection by the monitoring service. ...

Sorta Like Being The Acting Acting Commissioner

     Seen on the signature line of a routine Federal Register item posted today:

Nancy Berryhill, 

Deputy Commissioner for Operations,

performing the duties and functions not reserved to the Commissioner of Social Security. 

Trying To Use Social Security Number Misuse To Criminalize DACA People

     From the Washington Times:

... [P]ublic support for a DACA [Deferred Action for Childhood Arrivals] amnesty appears to be widespread, based in part on the public perception that “Dreamers” have committed no crime other than illegal entry.

In fact, it is likely that many if not most DACA applicants who held regular jobs had committed the crime of perjury, by providing their employers with a stolen or fake Social Security Number (SSN) for tax reporting purposes. The Social Security Administration (SSA) has estimated that 3 out of every 4 illegal aliens possess an SSN that belongs to somebody else.

When U.S. Citizen and Immigration Services (USCIS) began accepting DACA applications on Aug. 15, 2012, applicants were required to complete a standard work authorization form that required applicants to “include all [Social Security] numbers [they] have ever used.” In other words, many DACA applicants would have been obliged to confess in writing that they had committed a felony.

However, as soon as this potential disincentive to apply for DACA was brought to the administration’s attention, USCIS rushed out a statement that they were “not interested” in identifying individual violations of “some federal law in an employment relationship,” and they amended their DACA website to limit the reporting of SSNs by DACA applicants to those “officially issued to you by the Social Security Administration.” ...

At the time, DACA supporters might have argued that Social Security fraud by Dreamers, while a crime, did not directly harm any American citizen. What they may not have known, because it was concealed, was that on Aug. 23, 2012, just eight days after DACA commenced, the administration ordered the Social Security Administration (SSA) to suspend its decades-old practice of notifying employees by mail if the name and SSN under which their wages were being reported by their employers did not match the name and SSN in the SSA’s own records.

Many SSN “mismatches” are due to identity fraud, which means that many Dreamers were at risk of receiving mismatch letters from the SSA. Since awareness that they had been “flagged” as identity thieves might well have dissuaded them from disclosing their whereabouts in a DACA application, suspension of the SSA program was a logical add-on to the other actions taken by the administration to prevent fear of identity-theft prosecution from depressing DACA applications. ...

Although the SSA’s mismatch program was suspended on Aug. 23, 2012, the suspension was not made public until more than four years later, on Sept. 16, 2016, as the Obama administration drew to a close. Even then, the fact of the suspension was buried in a footnote to an SSA Records Maintenance notice and, until now, was virtually unknown outside the SSA. Evidently, the Obama administration was not keen to advertise its decision to risk the loss of Social Security benefits for millions of American workers rather than risk dissuading a few hundred thousand Dreamers from applying for DACA. ...

     Social Security number misuse by DACA people isn't a victimless crime. False wage reports can cause significant problems for the legitimate  number holders. However, drawing DACA people out into the open so that they use legitimate Social Security numbers eliminates the misuse. It has to be the most effective way of reducing the problem.
     This piece in a right wing newspaper suggests two possible future courses for the Trump Administration -- prosecuting DACA people for Social Security number misuse committed before DACA or using that misuse as justification for deporting DACA people. Either way it starts drawing Social Security further into immigration enforcement and nobody who cares about Social Security wants that.
     If the DACA people were all from Norway, would this issue be raised? I don't think so.