I Wouldn't Bet On This Holding Up

     From the Arizona Capitol Times:

A federal magistrate has voided policies of the Social Security Administration that deny benefits to the survivors of some gay marriages.

In a precedent-setting decision, Bruce Macdonald said it was wrong for the government to conclude that Michael Ely did not meet the legal requirements to be considered the legal survivor of James A. Taylor.

Macdonald acknowledged that the policy requires that couples have been married for at least nine months for the survivor to get benefits. And that was not the case here, as Taylor died within six months of their wedding.

But the judge said that Ely was legally precluded from marrying Taylor in Arizona until October 2014 when a federal judge voided the state’s ban on same-sex nuptials. They wed the following month, with Taylor dying six months later.

And Macdonald said the government cannot use that unconstitutional ban to now penalize Ely. ...

     The Magistrate Judge has issued only a recommended decision that must be reviewed by the actual District Judge, assuming that the parties didn't consent to jurisdiction by the Magistrate Judge, which seems unlikely. After the District Judge decides, the case is likely to be appealed to the Court of Appeals and it could go to the Supreme Court after that. I certainly agree that denying benefits in this situation is unfair but I'm doubtful that the Courts will find it unconstitutional. Not everything that is unfair is unconstitutional.

     Update: I am told that the parties did consent to Magistrate Judge jurisdiction. I don’t know why either would have consented in this case. There can be an appeal to the District Court Judge and discretionary review in the Court of Appeals but no appeal of right to the Court of Appeals if the parties consent to Magistrate Judge jurisdiction.

More Flexibility For Worker Hours

     From Government Executive:

Officials at the Social Security Administration told employees Friday that beginning on June 1, some workers will be allowed to perform their duties outside normal business hours in an effort to help employees juggle work and family obligations. 

The move comes after two months of pressure by federal employee unions, who have urged the agency to provide a “maxiflex” telework schedule so that workers with dependent care obligations can perform their duties without burning through their annual leave. As previously reported by Government Executive, the agency's restrictive telework and leave policies have been a source of deep frustration for many workers.  

The exact hours during which employees can work vary by agency subcomponent, and the more flexible schedules are only available to employees with coronavirus-related care issues, such as caring for children or elderly family members. Prior to June 1, employees have only been able to work within the hours of 6 a.m. and 6 p.m. ...

Former Chairman Of House Social Security Subcommittee Passes

     Sam Johnson, the former Chairman of the House Social Security Subcommittee, has passed away at the age of 89.

     Johnson was not a big supporter of Social Security. As an example, in 2016 he introduced a bill to cut Social Security benefits, add means testing and raise full retirement age to 69.

Is This A Local Problem Or A National Problem?

     At my law firm we're seeing many cases where an unfavorable initial or reconsideration determination was made on a Social Security disability claim but nothing was mailed to us. This sort of thing has always happened in a few cases but it's happening all the time now. We only find out about the determination later when we call to ask what's going on with the case. Is this just a local problem in NC or is it national? I could easily see this being either a local problem due to NC Disability Determination Service having to swiftly adjust to having almost all of its employees working from home or I could see it as a national problem because these notices are centrally printed out.

Terrible, Terrible Phone Service At Social Security

     From a report by Social Security's Office of Inspector General:

On November 6, 2019, Representative Larson, Chair of the Subcommittee on Social Security, requested that the Office of the Inspector General reviewSSA’s field office customer wait times and telephone services. In this report, we address SSA’s telephone services.We are issuing a separate report [which I haven't yet seen] related to SSA’s field office customer wait times. ...

Some Charts From The Report

[PC = Payment Center, which do the computations needed to place claimants on benefits. Giving their personnel telephone duties takes them away from the vital work to do something for which they're ill equipped to handle.]

Calls “abandoned in menus” occur when callers hang up while using automated services.

I Predict This Will Come To Pass If Biden Is Elected

     From Regulating Impartiality In Agency Adjudication by Kent Barnett, 69 Duke L.J.1695-1748 (2020):

... [T]he majorities in Lucia v. SEC and Free Enterprise Fund v. PCAOB expressly declined to resolve whether the U.S. Constitution condones SEC administrative law judges’ and other similarly situated agency adjudicators’ current statutory protection from at-will removal. The crux of the problem is that, on one hand, senior officials may use at-will removal to pressure agency adjudicators [such as Administrative Law Judges] and thereby potentially imperil the impartiality that due process requires. On the other hand, Article II limits Congress’s ability to cocoon executive officers, including potentially agency adjudicators, from at-will removal.

This Article argues that the executive branch itself can and should moot or mitigate this constitutional clash. Nothing in Article II prevents the president from issuing executive orders and agencies from promulgating regulations—collectively, what I refer to as “impartiality regulations”—that require good cause for disciplining and removing agency adjudicators, as well as other means of protecting adjudicator impartiality. Indeed, the executive branch has a long-standing yet overlooked practice of using executive orders and regulations for similar purposes. Impartiality regulations are but one form of the executive branch’s internal separation of powers. Such self-imposed separation provides a strong theoretical and practical solution for the agency-adjudicator dilemma. ...

    This may be the rare law review article that has an effect on the real world.
     By the way, my assumption here is that in Seila Law v. CFPB the Supreme Court will find the position of director of the Consumer Finance Protection Board to be unconstitutional because the incumbent may only be discharged for cause. Perhaps, I should say I expect that the Supreme Court will hold that while the position itself is constitutional, that the incumbent no longer has protection against being discharged without cause. The same would be the case for the position of Commissioner of Social Security. Administrative Law Judges would be next in line and I expect the same for them. I don't think Seila Law is getting as much attention as it should. Lucia was easily dealt with. Seila Law is a much larger threat to federal administrative law. Probably, the only way to deal with it is what the author of this article suggests, that is assuming that one cares about administrative justice. I think that Democrats care about administrative justice. I think that Republicans are enthralled with the idea of "deconstructing the administrative state." I think the only possible result of that is anarchy but judging by the Trump Presidency, Republicans like anarchy.

This Isn’t Making Sense To Me

     From Federal News Network:

... While the Social Security Administration has been under pressure for not yet rolling out electronic signatures, the agency, which handles Medicare Part B enrollment applications on behalf of the Centers for Medicare and Medicaid Services, is launching an online form to digitize what has been a completely paper-based process. 

“You either walk it into a field office, you fax it in or you mail it in, but ultimately there’s going to be paper involved, David Ellison, SSA’s lead for digital transformation, said last Friday in an ACT-IAC webinar. “Right now, that isn’t happening, with the exception of some fax traffic that we’re picking up.” 

With the pandemic disrupting paper processes, Ellison said SSA is quickly putting together an online form that with have anti-spam CAPTCHA features built-in. 

“It’s not like the old ones, where you look at a grid and you have to pick out the bicycles, and if you get it all wrong, and you have to do it again. With the modern versions, that’s all done in the background,” he said. 

By pushing its anti-fraud measures to the background, Ellison said SSA strikes a balance between providing a straightforward, easy-to-navigate experience for the public, but still keeping fraud measures in place. 

“If someone is misrepresenting themselves, we have a lot of data, like the phone number they’re calling in with. If that’s mismatching with something that we have stored in our back-end systems, because we have a relationship with this citizen, we can steer that caller to someone who maybe is going to handle a fraud scenario, but we want to do it more in the background. We don’t want to expose all the citizens to an uncomfortable experience,” Ellison said. “We’re very lucky right now that these platforms are evolving to collect all this data and to be able to pass it along to our back-end fraud systems. ...

     I don’t understand. Are they designing something to help claimants or to stop fraud? How much fraud could there be in signing up for Medicare Part B? Will they really be treating every case where someone is calling from their child’s phone as if it were possible fraud? 

     Maybe the agency ought to get over its electronic signature paranoia especially for instances that involve a low potential for fraud. It’s not like requiring “wet” signatures gives any real protection against fraud.

Emergency Paid Sick Leave Problems

     From Government Executive:

... The first coronavirus response bill signed into law in mid-March included a provision called the Emergency Paid Sick Leave Act, which provides employees in both the public and private sectors with up to 80 hours of paid sick leave, as well as up to 10 weeks of paid leave at two-thirds of their regular pay for workers who have child and dependent care responsibilities due to school and daycare closures related to the coronavirus pandemic. 

Although the Labor Department offered employers a 30-day “non-enforcement period,” that ran out more than a month ago. As of Friday, the Social Security Administration still had not begun offering the benefit, and it has told stakeholders that the Interior Department’s Interior Business Center has said it will not have implemented it in its payroll software until July. 

The Interior Business Center did not respond to a request for comment, but a spokesperson told Federal News Network that it has provided a workaround to customer agencies until it can update the software. 

Couture said that Social Security has declined to use that workaround, proposing that employees file for weather and safety leave instead. Under this plan, employees would be paid their full pay rate, and likely would be forced to pay the remainder back once the new system is in place.  ...

     If you’re wondering what the Department of the Interior has to do with it, the story is that that agency operates something like a contractor. For a price they handle payroll functions for other agencies. I would have thought that Social Security is plenty big enough to handle its own payroll matters but apparently not.