All Quiet On The Reopening Front

     From Federal News Network:

As several large departments make plans to reopen their offices to employees and the public during the pandemic, one agency has been relatively quiet.

The Social Security Administration, which made a series of contentious cuts to its telework program in the month leading up to the pandemic, has not called employees back to their offices en masse, nor has the agency indicated when it might do so.

Several agencies have published or distributed multi-phase reopening plans to their workforces in recent months, which describe, in varying levels of detail, how employees will gradually return to their offices and what to expect upon arrival.

Neither employees nor the unions that represent the SSA workforce have seen any kind of “reopening plan” from the agency, though they acknowledged it didn’t mean SSA doesn’t have one. ...

SSA declined to comment on its specific reopening plans, and it didn’t offer any timelines or details on how telework might fit into the agency’s future.

“We are monitoring the COVID-19 situation closely and are evaluating guidance from the Centers for Disease Control and Prevention, Office of Management and Budget and the Office of Personnel Management,” an SSA spokesman said in a statement to Federal News Network. “Many of our visitors are at higher risk for severe illness from COVID-19. Our goal is to continue to serve the American public while doing what we can to reduce the risk to our employees and visitors.” ...

Status Of Litigation On SSI For Residents Of U.S. Territories

     There are two cases pending on the constitutionality of denying SSI benefits to residents of U.S. territories. The United States Court of Appeals for the First Circuit ruled on April 10 that SSI benefits can’t be denied to residents of Puerto Rico. It appears that the government asked that the entire First Circuit Court of Appeals rehear the Puerto Rico case en banc. The Court apparently denied the request on May 26. A couple of weeks ago a U.S. District Court judge found that it is unconstitutional to deny Supplemental Security Income (SSI) benefits to Guam residents. That one will be appealed to the U.S. Court of Appeals for the Ninth Circuit.

     The government has 90 days beginning with the date that the en banc motion was denied in the Puerto Rico case to ask the Supreme Court to hear the case, which is called filing a petition for a writ of certiorari, often referred to as "cert." As best I can tell, the government hasn't yet done that. They have until August 24 by my count. The Supreme Court doesn't have to grant cert. In fact, they generally don't until there are decisions from different Courts of Appeals that conflict with each other on some issue. However, the Court's rules provide that cert can be granted to settle "an important question of federal law that has not been, but should be, settled" by the Supreme Court. Determining whether hundreds of thousands of people in Puerto Rico can get SSI seems to be an important question of federal law that needs to be settled. What's the Court going to do, wait and see if the Ninth Circuit issues a conflicting ruling on the issue and only then grant cert? What about all the people in Puerto Rico given SSI in the meantime?
     You might think that the Supreme Court, which is widely described as conservative, will uphold the denial of SSI to residents of U.S. territories but don't be so sure. To this point, every judge who has considered the matter, including two District Court judges and three judges of the Court of Appeals, have all found the prohibition to be unconstitutional. That's not the sort of record that would make me feel confident that the Supreme Court is going to find it constitutional. Not that it necessarily matters in this litigation, or should matter in any litigation, but four of the five judges who have considered the matter so far were nominated by Republican Presidents. The reactions of federal judges to Social Security cases don't break down along neat liberal-conservative lines. This isn't the sort of issue that is likely to draw an ideological response from the Federalist Society.

     Once the issue gets to the Supreme Court, who knows what effect the election might have? I expect that the Trump Administration will support the constitutionality of the prohibition of SSI to those living in U.S. territories but if Biden is elected, I'm not so sure. Historically, Solicitor Generals, who are responsible for representing the U.S. government before the Supreme Court, have felt obliged to defend the constitutionality of federal statutes, even when the Administration they represented felt otherwise. However, that policy had started to break down even before Donald Trump took office. The Trump Administration has completely abandoned any pretense of defending the constitutionality of federal statutes with which it has disagreed. Perhaps the parties to the Puerto Rico case could agree to a voluntary dismissal under Rule 46. That is possible even after the case is argued. A voluntary dismissal would leave the First Circuit opinion as the final word on the case.

    Coming up next in this series: What can be done to reduce the tidal wave of claims that could come from a Supreme Court opinion holding the residents of U.S. territories can receive SSI benefits?

Social Security Subcommittee To Hold Hearing!

     A press release:

House Ways and Means Social Security Subcommittee Chairman John B. Larson announced today that the Subcommittee will hold a hearing on “The Impact of COVID-19 on Social Security and its Beneficiaries” on Friday, July 17, 2020, at 12:00 p.m.

This hearing will take place remotely via Cisco Webex video conferencing. Members of the public may view the hearing via live webcast accessible at the Ways and Means Committee’s website. The webcast will not be available until the hearing begins.

What: Social Security Subcommittee Hearing on Examining the Impact of COVID-19 on Social Security and its Beneficiaries

When: 12:00 p.m. on Friday, July 17, 2020

Where: This hearing will take place remotely via Cisco Webex video conferencing.

Watch: Livestream of the hearing can be viewed via live webcast accessible at the Ways and Means Committee’s website. The webcast will not be available until the hearing begins.

Why A Supreme Court Decision Extending SSI To U.S. Territories Matters, Regardless Of Where You Live In The U.S.

     I'll post soon about the status of the litigation on the constitutionality of the prohibition on SSI payments for residents of most U.S. territories, particularly Puerto Rico and Guam, and what may be done about the practical problems this may cause. For now, just take it from me that there's a real chance that by this time next year the Supreme Court will have held that the prohibition on payment of SSI benefits for American citizens residing in U.S. territories is unconstitutional.

     Suddenly extending SSI to all U.S. territories is a big deal even if you live in Boise or Biloxi or Boston. There are estimates that as many as 700,000 Puerto Ricans could qualify for SSI and 24,000 Guamanians could qualify. There would also be some in the smaller Virgin Islands. If this happens as a result of a Supreme Court decision, all of them will become potentially eligible all at once. They won't all file claims the next day but an avalanche of claims won't be long in coming. There are a lot of poor people in these territories.

     Social Security's resources on the ground in these territories isn't ready. The field office employees in the territories probably haven't been trained in taking SSI claims and doing SSI income and resource determinations. They're certainly not experienced. How long do you think it will take to get them up to speed with windfall offsets? The local field offices, Disability Determination Services (DDS) and hearing offices may need to more than double in size just to handle their normal workload after the huge backlog of cases is processed.

     The only way to handle this avalanche of cases will be for mainland employees to help out but how much slack have you noticed at Social Security?

     One particular problem with this possible influx of cases is language. Social Security has plenty of employees who speak Spanish for its normal workload but would there be enough to handle the avalanche of Puerto Rican cases? Guam presents the problem of people who only speak Chamorro or Tagalog.

     Speaking of Guam, they're on the other side of the International Date Line. Their time zone is 10 hours later than Eastern Time, 7 hours later than Pacific Time. I suppose that Guamanians will be encouraged to call in the evening their local time but the time zone difference is significant.

     The strains for the Social Security Administration caused by a sudden extension of SSI to U.S. territories won't just be experienced locally. If this happens, it will cause staffing shortages all over the country and there will be increased backlogs at teleservice centers, field offices, DDS offices and hearing offices all over the country.

     If this happens as a result of a Supreme Court decision the agency will not have two or three years to prepare for the onslaught. Social Security can't just do nothing about these cases until it can get an increased appropriation, rent more office space and hire and train new employees. If these claimants have a constitutional right to benefits, they have a constitutional right to the same treatment as other U.S. citizens -- and, yes, those born in these territories are U.S. citizens.

     Coming tomorrow: What's the status of the litigation over SSI for U.S. territories?

They're Baaaaack!

     From WSB in Atlanta:

The Social Security Administration is demanding a Georgia woman should have to pay for a government mistake the agency made more than four decades ago. ...

Ginger Snowden was just 14 years old back in the 1970s when the SSA now says it mistakenly overpaid her father social security benefits.

Now, long after his death, the federal government wants her to pay back the money.

Federal officials are standing by the claim, telling [WSB] that they have a legal right to demand payment. ...

The alleged overpayments to Snowden's father -- nearly $3,000 -- were from 1973 when she was still a child.

"It was like, 'How can you collect money from me?'" Snowden said. "I just kept saying over and over again that I was 14 years old."

According to officials, Snowden lived in the same house with her father at the time, and therefore received some benefit from the money.

The Snowdens are not alone. ...

Back in 2014, Senator Chuck Grassley sent a letter blasting the Social Security Administration for going after decades-old overpayments, writing, "The actions raise serious questions about whether it is collecting debt properly or fairly."

After the criticism, the Social Security Administration temporarily stopped those controversial collection efforts.

But now, the SSA tells [WSB]: "Our review found we correctly applied the law and our regulations, policies and procedures.

In 2018, they say the once again started attempting to collect the old debts. ...

Do Not Fold, Spindle Or Mutilate

How many are now familiar with that once familiar phrase, “Do not fold, spindle or mutilate”?

Punch card operations at Social Security in 1930s

Political Appointments At Social Security

     One of the items that Social Security recently posted is a list of Non-Career Senior Executive Service employees as of last September. See below. Somebody can correct me if I'm wrong but I believe these are the political appointments at Social Security that's don't require Senate confirmation.

     By the way, I had posted about Mr. Sliwka before. I didn't realize he was a political. At least nominally, he's the person in charge of Covid-19 preparedness. You never know about politicals, though, particularly in the Trump Administration.

Draft Bill Gives Little New Funding To SSA But Does Protect ALJs

     From a press release:

The House Appropriations Committee today released the draft fiscal year 2021 Labor, Health and Human Services, Education, and Related Agencies (LHHS) funding bill, which will be considered in subcommittee tomorrow. The legislation includes funding for programs within the Departments of Labor, Health and Human Services, and Education, and other related agencies, including the Social Security Administration. ...

$13 billion for the Social Security Administration’s (SSA) operating expenses, with an increase of $100 million above the FY 2020 enacted level to hire additional staff at field offices, teleservice and processing centers and improve public services. ...

• Continuing Disability Reviews—The bill includes a new provision prohibiting the Social Security Administration from finalizing or implementing a new rule that would significantly increase the number and frequency of CDRs, cutting benefits to Social Security and SSI disabled beneficiaries.   
   
• Administrative Law Judges—The bill includes a new provision prohibiting the Social Security Administration from finalizing or implementing a proposed rule that would replace an individual’s right to appeal their denied application for Social Security or SSI benefits before an independent Administrative Law Judges at a hearing, with an appeal before an SSA staff attorney.

     Note that $100 million is less than 1% of the budget. Even in a time of recession, this may not be enough to cover inflation. I don't this this would lead to any new hiring.