Update On Lucia

      In June of 2018 the Supreme Court held in Lucia v. SEC that Administrative Law Judges (ALJs) as of that date were unconstitutional because they had not been appointed by the agency head. Social Security and other agencies cured this defect by having the agency head officially appoint each of the ALJs but this left the problem of cases decided before the new appointments. Social Security has tried to reduce the scope of that problem by arguing that the issue had to have been raised before the ALJ or at least before the Appeals Council.

     The first Court of Appeals opinions in one of the post-Lucia Social Security cases was Cirko v. Commissioner, a Third Circuit case, last November. Social Security lost. The Court held that the issue could be raised for the first time on appeal in the U.S. District Court.

     We now have three newer opinions from Courts of Appeals. In Carr v. Commissioner, the Tenth Circuit held on June 15, 2020 that the Court could not consider the Lucia issue since it had not been raised administratively. In Davis v. Saul, the Eight Circuit held the same way on June 26, 2020. However, in Ramsey v. Commissioner, the Sixth Circuit held on September 1 that the issue could be considered even though it had not been raised administratively. There are cases pending in other Courts of Appeals as well.

     The claimants in the Carr and Davis cases have asked that the Supreme Court review their cases. The Court doesn't have to do so but since there's disagreement among the Circuits, the Court probably will agree to hear the cases.

     Note that a Supreme Court opinion on this issue may have implications for the litigation over the constitutionality of the position of Social Security Commissioner brought about by the Supreme Court opinion in Seila Law v. CFPB. The Social Security Administration is trying very hard to pretend this issue doesn't even exist but it does and it will be litigated. Probably, it's already being litigated. I think it's irresponsible that Andrew Saul is still carrying out the role of Commissioner of Social Security. The attitude that Seila Law doesn't apply to Social Security seems to be based upon the assumption that because Seila Law was only about the Administration's desire to knock down the Consumer Financial Protection Bureau, which they hate, that other agencies that they don't hate (or don't want to admit to hating) won't be affected.  That assumes that the majority of the Supreme Court was just as cynical as they are and was only using a constitutional justification to harass an agency that the Court's majority hates as much as they do. That's not a safe assumption. As a lawyer, you may safely assume that your adversary is as cynical as you are but you should never assume that about a Court. Result oriented, maybe, but cynical, no. There is a distinction. But maybe I'm being too harsh. Another possibility is that those involved don't really care what the Supreme Court ultimately does about the Social Security Commissioner position because they expect to be out of office long before the Court can take up the issue. I guess that's just a different form of cynicism, however.

From A Labor Day Long Ago: GOP Proud Of Expanding Union Membership, Expanding Social Security

 

Need To Have Defined Roles When You're Being Agile

      From Fed Scoop:

The Social Security Administration can avoid confusion and bottlenecks on IT modernization projects by identifying roles for contracting officials in the agile software development process, according to the Government Accountability Office.

SSA adopted an agile approach to software development — characterized by incremental or iterative improvements to software — in 2017 to help meet its modernization goals, but those projects continue to see delays due to the murky roles of contracting officials, GAO says in a new report.

While SSA issued guidance on agile team members like project owners, developers and testers, it failed to do so for contracting officers (COs) and contracting officer’s representatives (CORs) within the context of agile projects.

“SSA officials told us they did not think they needed to specify the roles given that the contractors were only responsible for providing services,” reads GAO’s report released Monday. “However, according to leading practices for agile adoption, key roles in agile IT development include the program office, product owner, contracting personnel, and development team.” ...

Liam And Olivia, The Most Popular Baby Names Of 2019

      From Social Security, the most popular baby names of 2019:

Rank	Male name	Female name
1	Liam	Olivia
2	Noah	Emma
3	Oliver	Ava
4	William	Sophia
5	Elijah	Isabella
6	James	Charlotte
7	Benjamin	Amelia
8	Lucas	Mia
9	Mason	Harper
10	Ethan	Evelyn

CBO Produces Startling Report On DI Trust Fund Future

      Social Security's Office of Chief Actuary releases annual projections for the future status of the Old Age and Survivors Insurance (OASI) and Disability Insurance (DI) Trust Funds, called the trustees report.  The 2020 report projects that the OASI Trust Fund will lack funds to pay full benefits in 2034 and the DI Trust Fund in 2065.

     The trustees report is the one that people pay the most attention to but it's not the only one. The Congressional Budget Office (CBO) produces its own projections. That report has just been issued. It shows that the OASI Trust Fund will lack funds to pay full benefits in 2031 and the DI Trust Fund in 2026.

     The difference between the OASI projections (2034 versus 2031) is significant but the difference in the DI projections (2065 versus 2026) is eye popping. The difference in the OASI projections are probably due to different economic assumptions. The CBO had the benefit of knowing about the Covid-19 pandemic. There's no easy explanation for the difference in the DI projections. The CBO report doesn't attempt to explain the difference other than saying:

CBO had previously projected that the DI trust fund would be solvent through the end of the 10-year projection period. The earlier exhaustion date currently projected is largely the result of CBO’s projections of lower payroll tax revenues and higher spending on benefits in the next few year.

More Social Security Employees To Work In Office

      From Federal News Network:

The Social Security Administration is planning to ask more employees, first on a volunteer basis, to return to the agency’s field offices.

Managers have been coming into the field offices since the beginning days of the pandemic to handle the mail and process “dire-need cases.” Some SSA employees have joined them at the request of their managers, but the American Federation of Government Employees union, which represents workers at the agency’s field offices, didn’t consider those recalls to be large-scale.

Now, the agency will solicit more volunteers to return to their field offices, Sherry Jackson, a vice president with AFGE Council 220, told Federal News Network.

Offices that don’t have enough volunteers will begin recalling employees to work in person on a rotational basis. Employees who have been chosen to return will receive a recall letter from their area managers and two weeks notice before they’re expected in the office, Jackson said. ...

Stanford Ross Passes

      Former Social Security Commissioner Stanford Ross has died at the age of 88. He served during the Carter Administration.

I'd Say Trump Walked Right Into This One

      From Jennifer Rubin writing for the Washington Post:

You might not have noticed it during his speech in Pittsburgh on Monday, but Democratic presidential nominee Joe Biden slipped a big issue into the mix for 2020. While focusing primarily on President Trump’s liability for the ongoing pandemic, the rotten economy and the surge in racial violence, Biden also hit Trump’s plan to eliminate or suspend the payroll tax after the election. Biden declared, “The Social Security Administration’s chief actuary just released a report saying if a plan like the one Trump is proposing goes into effect, the Social Security Trust Fund would be ‘permanently depleted by the middle of calendar year 2023, with no ability to pay benefits thereafter.’” Oh, that seems like a big deal.

Biden was referring to Trump’s suggestion to eliminate the payroll tax, the funding mechanism that supports Social Security and Medicare. The Associated Press explained: “These taxes raised $1.24 trillion last year, according to the Congressional Budget Office. Over a 10-year period, Trump’s idea would blow a $16.1 trillion hole in a U.S. budget that is already laden with rising debt loads.”

The chief actuary of the Social Security Administration, Stephen Goss, sent a letter last week to Senate Democrats, explaining, “If this hypothetical legislation were enacted, with no alternative source of revenue to replace the elimination of payroll taxes on earned income paid on January 1, 2021 and thereafter, we estimate that [the Disability Insurance] Trust Fund asset reserves would become permanently depleted in about the middle of calendar year 2021, with no ability to pay DI benefits thereafter.” Goss added, “We estimate that [the Old Age and Survivors Insurance] Trust Fund reserves would become permanently depleted by the middle of calendar year 2023, with no ability to pay OASI benefits thereafter.”     

      In a sign that this issue may have hit a nerve, the Chairman of the Senate Finance Committee and the senior Republican on the House Ways and Means Committee have written Stephen Goss, Social Security's Chief Actuary, to complain about his response to the hypothetical question. However, Goss had little option but to respond to the hypothetical question. That's what his office does. He can't refuse to answer questions because he thinks a question because it seems political. All the questions are political. 

     Republicans have long thought that Goss is against them. I think the problem is that they keep putting forward foolish proposals because they have never bothered to try to understand how Social Security works or even given much thought to the politics of Social Security.  It's not Goss' fault the GOP keeps coming up with untenable ideas.