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Post by privateatty on Aug 19, 2014 20:54:10 GMT -5
Well, I guess we should thank OPM for not allowing SSA to gut any reference to the APA in the PD. That they, SSA, would have such an over-arching desire to do so is the best argument SSA can make for all ALJs to join AALJ--or at least FALJC. Notwithstanding that, OPM does not come off well in their letter. Gen Counsel does not tell me what the law is--the Statutes, Regs and case law does. And OPM cannot side with SSA on their cloak and dagger approach and meat cleaver antics and then say we leave it to both sides to iron out their differences and that we have no dog in this hunt. Please. No one asks the real question--which is WHY. Where is the need to change the PD? Are they really going to use one bad office to gut due process protections for all and put us on the path of Agency appartchiks deciding cases? Do you think changing the PD will give management/ HOCALJs more power to force ALJs to follow SSA policy? I had the impression the change was to prevent issues like WV from happening by giving managers/HOCALJs clearer authority to control some behaviors of those stepping out of bounds before going down the MSPB route. But I really do not know what prompted the change in terms of desired outcomes. It was sure close in time to the recent scandals so my guess is it is related. I am not even sure of the process in place to discipline ALJs if they refuse to follow policy. Clearly 99% of the corps is not an issue but what do they do about the ones who are consistently not following the chief judge directives on various issues? Interesting. The answer to your first question is yes. And I don't see much difference betwen the motives of SSA in the first and second question. At the end of the day judicial independence and the ability of the litigant to be afforded due process, free of agency bias and control, is the loser.
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Post by westernalj1 on Aug 20, 2014 20:13:51 GMT -5
Of course the Agency hopes to gain more control over ALJ's, but the change in the PD has nothing to do with preventing other scandals similar to the West Virginia fiasco. Anyone familiar with the West Virginia scandal would see it was one of management's own making. While there is no evidence to suggest that either Baltimore or the Regional Office in Philadelphia knew of the allegation that an ALJ took money from an attorney, if that is what occurred, but both the Philly Regional Office and Baltimore knew of, approved of, and encouraged the disposal of enormous dockets, which nobody could do if they were reading their files and actually paying attention to the facts and the law. Indeed, management did so with others, too, and continues to do so. But for the fallout from some articles in the press, which put SSA in a bad light, management would still be allowing, and feeding cases to similar "ALJ's" so that they could dispose of as many cases as they wanted. Management does not want control over ALJ's to prevent scandals or to ensure more professional behavior, but to simply get more ALJ's to blindly follow their misguided policies -- which, ironically, are the breeding grounds for future scandals. The best way to avoid future scandals and ensure more professional behavior would be to make ALJ's truly independent from SSA management, and place ALJ's under the direction of the federal court system or others who can be counted on to act responsibly and with integrity. That would be a change for the better for everyone.
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Post by maquereau on Aug 21, 2014 7:13:50 GMT -5
Let me second Western's observations.
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daisy
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Post by daisy on Aug 21, 2014 17:25:09 GMT -5
I share the concern that there is a long endgame in play with the agency's goal to have an ALJ core that blindly does what it is told.
I am currently an ALJ and do my 500 dispositions a year and move my cases along in a timely manner (I add this only because as a long time lurker I know a lot of board users assume that if anyone decries an agency action they must be an outlier in some way). I have great issues with the PD changes and definition of policy to include documents such as memos to have the same force and affect as other "policy" documents as SSRs. The latter have gone through public notice and comment in the FR in accordance with the APA. Having an APA hearing process required by statute is to protect the public from an agency from issuing backroom policies without public notice and comment.
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Post by privateatty on Aug 21, 2014 20:53:28 GMT -5
I share the concern that there is a long endgame in play with the agency's goal to have an ALJ core that blindly does what it is told. I am currently an ALJ and do my 500 dispositions a year and move my cases along in a timely manner (I add this only because as a long time lurker I know a lot of board users assume that if anyone decries an agency action they must be an outlier in some way). I have great issues with the PD changes and definition of policy to include documents such as memos to have the same force and affect as other "policy" documents as SSRs. The latter have gone through public notice and comment in the FR in accordance with the APA. Having an APA hearing process required by statute is to protect the public from an agency from issuing backroom policies without public notice and comment. Thank you daisy for posting and for your observations. The issues that are raised here take on a different perspective and meaning once you take the oath to be an ALJ. While this may all seem alarmist or simply irrelevant to most of the readers here, the question I have for ODAR's OGC (or whoever it was from ODAR that was meeting with OPM over the PD issue as noted in the newletter cited by robg) is this: If the APA has no place nor meaning in an ODAR Hearing as you have so steadfastly maintained, then why have you worked so hard to have it removed from the ALJ PD?
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Post by foursquare on Aug 22, 2014 22:00:31 GMT -5
The new position description puts the Deputy Commissioner in our supervisory chain and appears to remove the HOD from the supervision of the HOCALJ, at least on paper.
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lolo
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Post by lolo on Aug 23, 2014 17:13:52 GMT -5
I disagree, the best way to handle it is to start over with a new program.
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Post by appellant on Aug 28, 2014 20:59:38 GMT -5
Part of the problem is that the definition of "policy" has been completely bastardized. Not every pronouncement from on high is "policy." In fact, the APA has a fairly well defined statement of what constitutes Agency policy and it does not include memos from anyone. So yes, ALJs are bound by policy (promulgated by notice and comment) and must follow personnel rules, but otherwise, should be left out of the fray so they can make independent decisions without undue influence from their employer/absentee party to the matter pending before them.
The other problem is the complete lack of legal (versus governmental) ethics guidelines for ALJs. Look at other administrative systems and you will find ethical canons for the ALJ that are similar to those applicable to practicing attorneys and judges under other systems. (tangent - very few judges are "Article III" which seems to be the only comparison anyone is concerned with. State trial and appellate judges, state ALJs, bankruptcy, magistrates, etc, etc -- NONE appointed under Article III of the US Constitution and ALL are judges, just like federal ALJs). Anyway, a code of ethics for ALJs would go a long way toward abrogating the need for non-ALJ management oversight and provide an appropriate self-policing mechanism to root out those ALJs who are truly rotten apples while leaving those of us who are merely independent and irritating to continue making independent and irritating (but legally compliant) decisions. (Well, not me any longer).
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lolo
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Post by lolo on Aug 29, 2014 14:50:00 GMT -5
Yes, keep agitating and there will be no alj positions. It is already being contemplated.
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Deleted
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Post by Deleted on Oct 6, 2014 8:20:02 GMT -5
This was passed to us late last week. Writers and Judges were reminded not to include reference to Court decisions unless it could be cited as an Acquiescence Ruling.
"Judge Bice issued a memorandum on January 11, 2013, Compliance with Agency Policy - INFORMATION, that referenced SSR 96-1p, “Application by the Social Security Administration (SSA) of Federal Circuit Court and District Court Decisions.” As these issuances indicate, district court cases are not precedential. Typically, an ALJ or SAA should not consider any district court decisions except when one of his or her own decisions has been remanded by the district court. Accordingly, to be compliant with Agency policy, circuit court citations should not be included in ALJ and SAA decisions unless an Acquiescence Ruling directs otherwise. This will allow us to continue issuing quality decisions while complying with nationwide policy."
District Court cases are not precedential...an ALJ shoud not consider any district court decisions...
I understand this legal theory has been in place for a while. Still.
Discuss.
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Post by hopefalj on Oct 6, 2014 9:16:45 GMT -5
This was passed to us late last week. Writers and Judges were reminded not to include reference to Court decisions unless it could be cited as an Acquiescence Ruling. "Judge Bice issued a memorandum on January 11, 2013, Compliance with Agency Policy - INFORMATION, that referenced SSR 96-1p, “Application by the Social Security Administration (SSA) of Federal Circuit Court and District Court Decisions.” As these issuances indicate, district court cases are not precedential. Typically, an ALJ or SAA should not consider any district court decisions except when one of his or her own decisions has been remanded by the district court. Accordingly, to be compliant with Agency policy, circuit court citations should not be included in ALJ and SAA decisions unless an Acquiescence Ruling directs otherwise. This will allow us to continue issuing quality decisions while complying with nationwide policy." District Court cases are not precedential...an ALJ shoud not consider any district court decisions... I understand this legal theory has been in place for a while. Still. Discuss. Most of the quoted material makes sense. District court decisions are not precedential so I can see SSA having a policy of not citing them. They go off the rails when they say "circuit court citations should not be included in ALJ and SAA decisions unless an Acquiescence Ruling directs otherwise." Circuit court decisions are precedential. With exceptions not applicable here, district courts and federal agencies are bound by the decisions of the circuit court for the circuit in which they are located. This part would only make sense if it applied only to the citation of decisions from other circuits, which have a standing essentially equivalent to that of district court decisions. This is not to say the agency could not have provided at least an arguable, though likely a debatable, basis for not citing any circuit court decisions. It's just that they haven't done so. I am curious to know how many significant circuit court decisions have not been adopted as ARs. I don't know that this is a significant practical issue.
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Post by gary on Oct 6, 2014 9:53:05 GMT -5
This was passed to us late last week. Writers and Judges were reminded not to include reference to Court decisions unless it could be cited as an Acquiescence Ruling. "Judge Bice issued a memorandum on January 11, 2013, Compliance with Agency Policy - INFORMATION, that referenced SSR 96-1p, “Application by the Social Security Administration (SSA) of Federal Circuit Court and District Court Decisions.” As these issuances indicate, district court cases are not precedential. Typically, an ALJ or SAA should not consider any district court decisions except when one of his or her own decisions has been remanded by the district court. Accordingly, to be compliant with Agency policy, circuit court citations should not be included in ALJ and SAA decisions unless an Acquiescence Ruling directs otherwise. This will allow us to continue issuing quality decisions while complying with nationwide policy." District Court cases are not precedential...an ALJ shoud not consider any district court decisions... I understand this legal theory has been in place for a while. Still. Discuss. There is actually a fairly reasonable rationale for this, though they have not explained it as well as they might. The part they have done the best job of explaining is why they don't want district court decisions cited: they correctly say those cases are not precedential, so unless the case is back on remand the agency's saying district court decisions should not be cited makes sense. They go on to say, "circuit court citations should not be included in ALJ and SAA decisions unless an Acquiescence Ruling directs otherwise. This will allow us to continue issuing quality decisions while complying with nationwide policy.". This part could use a bit of unpacking. Decisions from other circuits have a standing essentially equivalent to district court decisions so not citing them makes sense. These are included by the agency though with circuit court decisions from one's own circuit. There is a rationale for not citing decisions from one's own circuit absent an Acqiescence Ruling directing otherwise. SSA is running a nationwide program. If the 3rd Circuit makes a decision contrary to SSA policy, that only applies to the 3rd Circuit. If SSA decides to apply the 3rd Circuit decision nationally, problem solved. But if the SSA decides to continue to apply and defend the policy in other circuits, applying the 3rd Circuit decision in the 3rd Circuit would result in differences in how disability cases are decided based on geography. And if the 5th Circuit upheld the same SSA policy, the problem of uneven application of the law would be exacerbated. Therefore, until SSA issues an Acquiescence Rulings ng it does not want circuit court decisions contrary to its policies applied anywhere. Of course the argument against all this is that decisions of a circuit court are binding in the applicable circuit no matter what SSA says, and so any ALJ decisions comporting with SSA policy but contrary to the circuit court's decision should be overturned at the district court level. In other words, in some cases the agency would be setting certain ALJ decisions to be overturned in court. So the SSA's position on citing circuit court decisions is not irrational, though it may be debatable.
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Post by gary on Oct 6, 2014 9:59:58 GMT -5
Most of the quoted material makes sense. District court decisions are not precedential so I can see SSA having a policy of not citing them. They go off the rails when they say "circuit court citations should not be included in ALJ and SAA decisions unless an Acquiescence Ruling directs otherwise." Circuit court decisions are precedential. With exceptions not applicable here, district courts and federal agencies are bound by the decisions of the circuit court for the circuit in which they are located. This part would only make sense if it applied only to the citation of decisions from other circuits, which have a standing essentially equivalent to that of district court decisions. This is not to say the agency could not have provided at least an arguable, though likely a debatable, basis for not citing any circuit court decisions. It's just that they haven't done so. I am curious to know how many significant circuit court decisions have not been adopted as ARs. I don't know that this is a significant practical issue. I changed my post while you were responding to it so it is different now. As to your question, I don't know but would also be interested in the answer. Apparently the agency is concerned enough to reiterate its position on the citation of circuit court decisions. I would be interested in hearing from someone who actually knows the answer.
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Deleted
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Post by Deleted on Oct 6, 2014 10:41:37 GMT -5
I am curious as well as to how many decisions are at issue. Maybe only a handful, or less. The task of comparing Circuit/District Court cases against ARs to look for the missing one seems unfeasable.
I guess what gives me pause is the idea that the Agency can read Circuit court decisions and either 'acquiesce' or...not? So, where does that leave our humble, hard-working, ALJ?
Suppose the Court has called into question Agency policy X. The Agency has not yet gotten around to acquiescing or not. I agree with the Court, but am not permitted to cite case law to that effect in my decision? The Court has called into question Agency policy Y. The Agency declined to acquiesce. I agree with the Agency. I am not permitted to cite case law as I articulate why? The Court has called into question Agency Policy Z. The Agency acquiesces and issues a ruling to that effect. I think I have a case in which the facts clearly demonstrate an error in the Court’s logic. I wish to issue a decision citing case law, but questioning its application. I am not permitted to cite case law unless an AR directs me to? Let’s be honest, these are relatively far-out hypotheticals. This will not come up, often, if at all. I could plug away as an ALJ for the remainder of my career and never have this come up. But. What, exactly, does this policy indicate about judicial independence, if such a thing exists? Is my role in this purely to advocate for the Agency’s interpretation of case law and policy? Clearly, the Agency thinks so. Do I have any ethical/professional duties and responsibilites as a lawyer and officer of the court, as well as an ALJ, to cite to any and all case law that might be relevant?
Many questions to which I do not know the answers...
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Post by gary on Oct 6, 2014 11:01:51 GMT -5
I think there are two big issues intertwined in the agency's communication. There is the question of whether ALJs must follow court decisions or not, most particularly the decisions of the circuit court for the relevant circuit. There is also the question of whether court cases should be cited.
I can understand the agency's concern with having its policies followed even if the relevant circuit court has decided a case to the contrary. SSA is not the only agency that sometimes/often does not acquiesce in circuit court decisions. I think it might be preferable if they followed applicable circuit precedent, but I can understand where they are coming from.
I don't understand though why they don't want court cases cited as long as in the end the agency's policy is followed. In this I think I agree with robg. I do not understand why SSA does not want an ALJ decision to cite cases from whatever court agreeing with the agency. Or to cite cases, recognize their conflict with agency policy, and then explain why those cases are not being followed.
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Post by JudgeRatty on Oct 6, 2014 12:05:53 GMT -5
I found it easy to deal with since the only cases to which I cited are mentioned in the SSRs if they did not have an AR. If I want to make a certain point, I just cite directly to the relevant regs or SSRs and leave it at that. I didn't find the whole issue too worrisome. I think this is one more way that the agency is trying to keep all the decisions in line with policy across the board. I think outsiders who have experience in other areas will find it unusual not citing to relevant case law. When I first started with SSA I was doing research on specific issues and citing to case law just like I did in private practice. It was easy to let that go and focus on the regs, ARs and SSRs.
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Post by privateatty on Oct 7, 2014 15:37:34 GMT -5
"Oath
I, [name], do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.
5 U.S.C. §3331"
So how does one follow the CALJ's Directive (noted by robg) and faithfully follow the Constitution's Article III tenants and what you learned in law school relative to this Oath?
With all respect to sratty (and I really like her posts), I'm at odds on this issue. If the Agency dictates how you apply the law, then the Constitutional checks and balances are out the window. There is no middle ground here for me--you have to follow relevant Circuit Court case law. Period. If not, why have Circuit Court review of SSA cases?
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Post by JudgeRatty on Oct 7, 2014 16:01:16 GMT -5
"Oath I, [name], do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God. 5 U.S.C. §3331" So how does one follow the CALJ's Directive (noted by robg) and faithfully follow the Constitution's Article III tenants and what you learned in law school relative to this Oath? With all respect to sratty (and I really like her posts), I'm at odds on this issue. If the Agency dictates how you apply the law, then the Constitutional checks and balances are out the window. There is no middle ground here for me--you have to follow relevant Circuit Court case law. Period. If not, why have Circuit Court review of SSA cases? Thanks Privateatty, no offense taken at all. At this point in my career (Senior Attorney), I have no choice but to follow exactly what they (management) tell me to do. If I do otherwise, it will be reflected in my reviews and ability to obtain awards, have good references, etc. So I am a good soldier and follow policy. Period. But I have not run into anything (yet) that would cause me to NOT follow case law. So far, everything relevant in our circuit is covered by the SSRs or the ARs. I guess that was what I was trying to get across earlier. NOW, with that said.... IF I came across something to the contrary, that may be another story. I guess all I am saying is that at this point, I have not been in a position where it was an issue. I will always be a lawyer and will follow my oath first and foremost. I guess it just depends on the situation with the case law. I mean, is this really an issue in our SSA practice? Are there instances when we have relevant case law that needs to be addressed in a decision where there is no AR? I can see in theory there "may" be that instance in the future, but is that actually an issue for anyone right now? Just wondering since I am only speaking for myself and many others may have different issues that have come up where they wanted to quote case law but were told not to do so.
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Post by privateatty on Oct 7, 2014 16:25:35 GMT -5
"Oath I, [name], do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God. 5 U.S.C. §3331" So how does one follow the CALJ's Directive (noted by robg) and faithfully follow the Constitution's Article III tenants and what you learned in law school relative to this Oath? With all respect to sratty (and I really like her posts), I'm at odds on this issue. If the Agency dictates how you apply the law, then the Constitutional checks and balances are out the window. There is no middle ground here for me--you have to follow relevant Circuit Court case law. Period. If not, why have Circuit Court review of SSA cases? Thanks Privateatty, no offense taken at all. At this point in my career (Senior Attorney), I have no choice but to follow exactly what they (management) tell me to do. If I do otherwise, it will be reflected in my reviews and ability to obtain awards, have good references, etc. So I am a good soldier and follow policy. Period. But I have not run into anything (yet) that would cause me to NOT follow case law. So far, everything relevant in our circuit is covered by the SSRs or the ARs. I guess that was what I was trying to get across earlier. NOW, with that said.... IF I came across something to the contrary, that may be another story. I guess all I am saying is that at this point, I have not been in a position where it was an issue. I will always be a lawyer and will follow my oath first and foremost. I guess it just depends on the situation with the case law. I mean, is this really an issue in our SSA practice? Are there instances when we have relevant case law that needs to be addressed in a decision where there is no AR? I can see in theory there "may" be that instance in the future, but is that actually an issue for anyone right now? Just wondering since I am only speaking for myself and many others may have different issues that have come up where they wanted to quote case law but were told not to do so. Here's what Sec. 2 of Art. III actually states: "Section 2. The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;--between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects." Again I would iterate what I stated above. It is incumbent upon all attorneys to follow the Circuit Court case law, as relevant, to the case before them. Need I remind everyone that the duty is enhanced when the Agency is a party? That the same Agency who is a party would dictate the law to me flies in the face of your Oath of Office. Let me put it this way. If SSA/OGC tried to argue before a Circuit Court Judge the CALJ directive, pray tell, what would be the outcome?
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Post by hamster on Oct 7, 2014 16:33:13 GMT -5
I haven't educated myself as to all the finer, more technical aspects of this discussion. So, please forgive me for speaking out of turn. But, I've found most decisions easy to make and cause to be written.
That is, every case is so dependent on its own facts. If a person is 50 years old and can only lift 10 pounds and has no past work, then they're disabled. I don't need to cite to an Article III court's decision. On the other hand, if a person is 25, drives every day, can lift 100 pounds, and their only functional limitation is that they cannot be exposed to atmospheric irritants on more than an occasional basis, then they're not disabled. (I base that on what I know the VE will testify to.)
You have to consider the documentary and testimonial evidence and determine whether the evidence is believable or not. Is the claimant blowing smoke or testifying truthfully? Did the consultative examiner do a good job? Is the treating source's assessment, if any, a reasonable one?
The deliberative process in every case is, as a practical matter, wholly fact dependent. You apply the facts you find to SSA policy and 20 CFR. I don't need to look to case law to decide whether the claimant is disabled.
My two cents' worth. YMMV.
Best, Hamster
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