Your Get Out Of The Appeals Council Jail Free Card

     I said in an earlier post that I thought that because of the Supreme Court decision in Lucia v. SEC that the Appeals Council might as well go ahead and remand virtually all the cases it has pending. Another attorney at my firm pointed out to me the reason why they have little choice, as long as a Lucia objection has been filed with the Appeals Council. They can’t realistically raise the objection that you failed to raise the issue before the ALJ because in Lucia v. SEC itself (slip opinion at 3), the objection was only raised before the Securities and Exchange Commission itself after the ALJ decision. Theoretically, one could say that issue was never considered by the Supreme Court but that's theoretical rather than an argument Social Security is at all likely to raise. Social Security can’t say that its ALJs are different from the SEC's ALJs since the Solicitor General memo has conceded that they aren't.

     If you've got a case pending at the Appeals Council and you haven't already filed a Lucia objection, you'd better do so right away. Like today.

61,000 Unprocessed Appeals!

     Here is something that I was unaware of from the testimony of Lisa Eckman who is Co-Chair of the Social Security Task Force of the Consortium for Citizens with Disabilities (CCD), an umbrella organization of non-profits involved in helping the disabled, at today's House Social Security Subcommittee:

In March 2015, SSA updated its electronic appeals system. The new system involved a “single submission” practice in which appeals were only processed when applicants completed lengthy forms not required by SSA’s regulations. These additional requirements were poorly communicated, leading to more than 61,000 people filing regulatorily compliant appeals that went unprocessed. SSA decided in early 2018, after several years of advocacy from CCD member organizations and other groups, to re-contact these claimants. Over 28,000 of these appeals are now being processed, some of them several years after they should have been, and more will be processed soon. Although we appreciate SSA’s efforts, we remain concerned that the iAppeals system still requires more information than the regulations require and that SSA has no plans to change this. The agency’s position is that because the paper process complies with regulations, it is acceptable to have an electronic process that violates them. This faulty reasoning deprives tens of thousands of claimants of due process.

Witness List For Today's Congressional Hearing

     Below is the witness list for today's hearing before the House Social Security Subcommittee on Examining Changes to Social Security’s Disability Appeals Process. It starts at 10:00.

• Patricia Jonas
  Deputy Commissioner, Analytics, Review, and Oversight, Social Security Administration
• Elizabeth Curda
  Director, Education, Workforce, and Income Security Issues, Government Accountability Office
• Will Morton
  Analyst in Income Security, Congressional Research Service
• Jeff Price
  Legislative Director, National Association of Disability Examiners
• Lisa Ekman
  Director of Government Affairs, National Organization of Social Security Claimants’ Representatives, on behalf of the Consortium for Citizens with Disabilities Social Security Task Force
• Hon. Ronald A. Cass
  President, Cass & Associates, PC

Solicitor General Memo Makes Social Security's Lucia Headache Worse

     The Solicitor General represents the federal government before the Supreme Court. This is from a memo from the Solicitor General to General Counsels at federal agencies concerning the recent Supreme Court decision in Lucia v. SEC:

... As discussed below, to the extent feasible and consistent with law, we advise agencies ... (3) in pending cases in which no Appointments Clause challenge was timely made and preserved, to argue that any such challenge is forfeited; and (4) in pending cases in which an Appointments Clause challenge was timely made and preserved, to seek a voluntary remand to the agency to provide a hearing before a different, properly appointed ALJ, consistent with Lucia. ...

A threshold question is who exactly is covered by the Supreme Court's decision in Lucia. Although the Court's specific holding is narrow, its reasoning sweeps more broadly. For the reasons discussed below, we conclude that all ALJs and similarly situated administrative judges should be appointed as inferior officers under the Appointments Clause, and that Department Heads should ratify and approve the appointments of existing ALJs and administrative judges accordingly. ...

The Court's decision in Lucia does not directly address the constitutional status of administrative law judges appointed under 5 U.S.C. 3105 who do not preside over adversarial administrative hearings or possess powers equivalent to those of the SEC ALJs in Lucia. For example, Lucia does not squarely resolve the status of ALJs who preside over ex parte hearings for applicants seeking federal benefits. Nonetheless, much of the reasoning of Lucia applies with equal force to such ALJs: while they may not preside over adversarial trials, they do take testimony, preside over hearings, receive and weigh evidence, and employ various mechanisms for obtaining compliance with their orders. Accordingly, taking into account both the Supreme Court's reasoning in Lucia and the importance of ensuring the President's oversight of the execution of the laws, the Department of Justice no longer plans to argue that such ALJs are employees rather than inferior officers. Agencies should appoint all ALJs as inferior officers. ...

Many agencies, however, use other non-ALJ officials-often termed "administrative judges" or "administrative appeals judges"-to preside over hearings and issue initial or appellate decisions in agency adjudications. While there will be case-by-case questions, we anticipate that many of these adjudicative officials will qualify as inferior officers under Lucia, especially if they preside over adversarial hearings and have the four specific forms of authority highlighted by the Court in Lucia. Again, taking into account both the Supreme Court's reasoning in Lucia and the importance of ensuring the President's oversight of the execution of the laws, the Department does not expect to defend the appointment of such officials by individuals other than the Department Head on the ground that they are mere employees. Accordingly, we recommend that agencies appoint such non-ALJ adjudicators as inferior officers in the same manner as ALJs, consistent with the advice in this memorandum, or contact us with further questions, as appropriate. ...

The Constitution not only specifies the manner in which officers of the United States must be appointed, but also limits the extent to which officers may permissibly be shielded from removal by the Department Head. ... Many litigants have already argued that ALJs are impermissibly shielded from removal because, by statute, ALJs can only be removed "for good cause established and determined by the Merit Systems Protection Board on the record after opportunity for hearing before
the Board." 5 U.S.C. § 7521(a). ...

The Department of Justice is prepared to defend the constitutionality of Section 7521, as properly construed. As the government argued in the Supreme Court in Lucia, Section 7521's "good cause" standard for removal is properly read to allow for removal of an ALJ who fails to perform adequately or to follow agency policies, procedures, or instructions.

      The key points here as I see them:

• The federal government isn't going to defend the constitutionality of Social Security ALJ decisions issued prior to the date they were officially appointed by the Acting Commissioner.
• The federal government will try to defend these cases only on the grounds that the claimant did not raise the issue administratively (issue preclusion).
• It's not completely clear but it seems very likely that the federal government will not try to defend the constitutionality of the decisions of Social Security's Administrative Appeals Judges who make decisions at the Appeals Council prior to their appointment by the Acting Commissioner. (There has been no announcement that they have been so appointed but I imagine they have. I would appreciate information on this point.)
• The federal government will defend ALJs who are challenged on the grounds that they may only be removed by the Merit Systems Protection Board but only by saying that "as properly construed" that ALJs may be removed far more easily than has been the case in the past.

       The issue preclusion argument that Social Security will make isn't a strong one. There is a Supreme Court decision holding that issue preclusion doesn't apply to Social Security cases generally. Social Security will have an especially hard time getting the courts to accept issue preclusion in these cases since the agency announced earlier in the year that neither ALJs nor the Appeals Council could consider arguments concerning the constitutionality of ALJ appointments. How can you demand that an argument have been raised when you're announced to the world that you wouldn't consider the argument even if it was raised? Even if the agency could somehow get around that, there is the question of when the issue must be raised. Is it enough to raise the issue before the Appeals Council?

     Social Security won't follow my advice but I'll give it anyway. The Solicitor General just took away your strongest argument -- that Social Security ALJs could be distinguished from SEC ALJs. The agency may as well hold up its hands and surrender. Remand all the cases pending at the Appeals Council. Accept voluntary remands in all cases pending in federal courts.  You'd clear out the Appeals Council backlog and you'd avoid an avalanche of federal court cases that you're going to lose.

     The extent to which Appeals Council decisions will be affected is unclear. Is a denial of review enough to be a problem for Social Security? What about a remand order? It's not a final decision. Does it even matter considering that the ALJs were unconstitutional?

     Can Social Security and other agencies defend the constitutionality of the ALJ removal procedures? How hard will the federal government even try to defend on this point? Their logic sounds strained to me. I doubt that their hearts are in it. I'm pretty sure that the Federalist Society thinks that the removal procedures are unconstitutional. The Trump Administration has nearly subcontracted its legal policy decisions to the Federalist Society.

     Will Social Security try to remove more ALJs than they have in the past on the grounds that it should be far easier to remove ALJs than it has been in the past?

Editorials Opposing Trump ALJ Order

     The Los Angeles Times and the Washington Post have run editorials, independent of each other, criticizing President Trump's use of the Supreme Court decision in Lucia v. SEC as a pretext for removing the protections against politicizing the hiring of Administrative Law Judges. It took a little while but I think it's become clear to everyone who's taken the time to look at this that the Trump order, in addition to being unnecessary, was a bad idea.

Getting Carried Away

     From the Federal Times:

The Social Security Administration has left one of its employees on administrative leave well past the limit established in U.S. Code after that employee wrote on agency office windows in Troy, New York, to protest recent union-targeting executive orders.

Adam Pelletier, an employee and union representative at the Troy office, was placed on administrative leave July 2 and told Federal Times that he has yet to receive any official notice on why or what the agency plans to do with him.

U.S. Code limits the amount of time a federal employee can be placed on administrative leave to 10 work days per calendar year, which expired for Pelletier July 16. An agency can place an employee on investigative leave for additional time after that in the case of a misconduct investigation, but the employee must receive written notice of such leave.

Pelletier joined SSA as a temporary employee in July 2012 and joined the American Federation of Government Employees shortly thereafter. He was then hired as a permanent employee one year later. He currently works as a claims representative and a grievance vice president for the local chapter of the union.

Late at night July 1, Pelletier wrote on the windows of the Troy, New York, SSA office building with washable window paint. Pelletier said it was an act of protest of moves the agency had made to remove the union from the offices. ...

The morning after tagging the windows, Pelletier told District Manager John Rainis that he tagged the windows, and that he intended to file a grievance if the message was taken down. The district manager then called the police, according to Pelletier.

“When they got there, I approached them. I indicated that it was me, and I explained to them why I did it. And they just took some notes and carried on with their day,” said Pelletier. “About an hour later the federal police showed up, my manager called me into his office and he essentially explained that I was being put out on administrative leave until further notice.” ...

     I'm not defending this guy. He's got free speech rights but they don't go this far. Look at it this way. If the guy had written something innocuous like "Have a nice day" on the window would the agency have been within its rights to take it down and discipline him? Of course. The window isn't a public space in the same way that a public park or street corner is. As an employee he had no right to post a personal message there. Social Security should have followed its own rules, however.

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.