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Post by factfinder on Sept 18, 2015 19:56:38 GMT -5
In a decision issued in the past few days, an MSPB Judge, in a fairly long opinion, refused to sustain SSA's suspension of of a ODAR ALJ for not following HALLEX on having a translator when requested on the grounds of decisional independence. This is SSA v. Butler. JUdge reasoned CFR more important than HALLEX.
The judge found HALLEX is not a reg of any type - not published on Fed Reg, etc. Judge Bice does not come out too well in this decision, but Judge Butler did not win everything - he can be reprimanded for being to slow when directed to move a case.
The ALJ community outside of SSA thinks HALLEX is nuts, because none of them has to deal with any crap like HALLEX.
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Post by hopefalj on Sept 18, 2015 22:19:38 GMT -5
HALLEX is not binding... unless the AC remands a decision back to you because of your failure to follow HALLEX. Then it's binding.
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Post by cafeta on Sept 18, 2015 23:44:45 GMT -5
HALLEX is not binding... unless the AC remands a decision back to you because of your failure to follow HALLEX. Then it's binding. Or the District or Circuit Court.
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Post by mercury on Sept 19, 2015 11:31:46 GMT -5
Yep...binding for MSPB purposes doesn't necessarily bind USDC or a COA. And obviously that doesn't stop the AC from doing what it will.
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Post by Deleted on Sept 19, 2015 11:46:13 GMT -5
Most courts are in agreement that HALLEX is not binding, just like the claims manual.
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Post by cafeta on Sept 19, 2015 12:29:52 GMT -5
Most courts are in agreement that HALLEX is not binding, just like the claims manual. Most courts in the jurisdictions I practice find the HALLEX not binding when they want to affirm; and also find it not binding, but a basis for remand when not followed if they want to remand.
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Post by JudgeRatty on Sept 19, 2015 16:10:47 GMT -5
I think there is an important distinction in this MSPB case. Judge Devine did not set forth the blanket determination that HALLEX is not binding on ALJs. Quite the contrary. This case was about a narrow issue regarding a conflict between a "particular" HALLEX provision dealing with the use of interpreters and the ALJs ability to determine whether or not one was needed because the regulations set forth that the ALJ determines how the hearings are conducted and who is to be part of the hearing (Devine sets forth the exact language of the regs and I am taking shortcuts here). This particular HALLEX was not binding because it was in conflict with the regulations, which have the force of law, and when in conflict the regulation prevails. I have been reading on various sites that the decision basically indicated that HALLEX does not bind ALJs. This is an incorrect assertion and I urge everyone to actually READ the MSPB case and decide for themselves. It is a very well written (no surprise there with Judge Devine writing it--knew him from my old SSA office while he was there) decision and it is quite detailed about the force of regulations versus HALLEX. My point here is do not assume that all the comments about the synopsis of the case are correct.
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Post by phoenixrakkasan on Sept 19, 2015 16:26:38 GMT -5
Chevron deference vs no deference. Deference wins. HALLEX serves as authority.
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Post by Deleted on Sept 19, 2015 16:36:21 GMT -5
I am not advocating people not follow HALLEX. I am just pointing out that there are courts that have held HALLEX is not binding. Take, for example, in Moore v. Apfel, 216 F.3d 864, 868 (9th Cir. 2000), where "[t]he Commissioner, relying on Schweiker v. Hansen, 450 U.S. 785, 789, 101 S.Ct. 1468, 67 L.Ed.2d 685 (1981), argue[d] that HALLEX is a purely internal manual and as such has no legal force and is not binding." The court agreed. (It certainly sounds like judicial estoppel would apply to SSA in other cases, maybe not before the MSPB, though.)
It is quite a different argument if a particular HALLEX provision merely restates or clarifies the CFR, or provides more due process protections. Then, it would and should be binding.
I'm a rules kind of guy. I follow them. As such, I agree, agency employees (even ALJs) should follow HALLEX, as cryptic as it may be in some instances.
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Post by Deleted on Sept 19, 2015 17:26:36 GMT -5
In Christensen v. Harris County 529 U.S. 576 (2000), the Court found internal manuals are not entitled to Chevron deference. Id. at 587. However, manuals are entitled to respect as persuasive authority. Id. Again, if a particular provision in the manual is identical to the CFR, then it would be entitled to Chevron deference. But really, the CFR is given the deference and not the manual.
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Post by factfinder on Sept 20, 2015 11:20:48 GMT -5
Recommend everyone read the decision. The real issue was whether HALLEX could require the ALJ to put a translator in the hearing room when the CFR left it to his discretion. (The reason he did not is interesting - he was evaluating English speaking ability, plus there were real issues as to this being an improper practice by claimant reps - imagine that.) Judge Devine really got it - if the CFR leaves it to the judge's discretion, then a non binding HALLEX does not matter. This is not a Chevron case at all IMO. This is a personnel case where the judge argued discretion allegedly trumped by HALLEX as put forth according to SSA. Potentially a huge case for judges. Will be interesting to see what the MSPB does with it is SSA appeals.
Personally, HALLEX is an embarrassment to SSA and they ought to publish it in the Fed Reg or public comment or take it down.
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Post by x on Sept 20, 2015 15:35:24 GMT -5
Recommend everyone read the decision. The real issue was whether HALLEX could require the ALJ to put a translator in the hearing room when the CFR left it to his discretion. (The reason he did not is interesting - he was evaluating English speaking ability, plus there were real issues as to this being an improper practice by claimant reps - imagine that.) Judge Devine really got it - if the CFR leaves it to the judge's discretion, then a non binding HALLEX does not matter. This is not a Chevron case at all IMO. This is a personnel case where the judge argued discretion allegedly trumped by HALLEX as put forth according to SSA. Potentially a huge case for judges. Will be interesting to see what the MSPB does with it is SSA appeals. Personally, HALLEX is an embarrassment to SSA and they ought to publish it in the Fed Reg or public comment or take it down. Do other agencies run their hearing rules through the CFR? Seems like a huge, burdensome process. With over a million cases to hear, some rules are needed just to keep the wheels turning.
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Post by JudgeRatty on Sept 20, 2015 16:31:58 GMT -5
Recommend everyone read the decision. The real issue was whether HALLEX could require the ALJ to put a translator in the hearing room when the CFR left it to his discretion. (The reason he did not is interesting - he was evaluating English speaking ability, plus there were real issues as to this being an improper practice by claimant reps - imagine that.) Judge Devine really got it - if the CFR leaves it to the judge's discretion, then a non binding HALLEX does not matter. This is not a Chevron case at all IMO. This is a personnel case where the judge argued discretion allegedly trumped by HALLEX as put forth according to SSA. Potentially a huge case for judges. Will be interesting to see what the MSPB does with it is SSA appeals. Personally, HALLEX is an embarrassment to SSA and they ought to publish it in the Fed Reg or public comment or take it down. Do other agencies run their hearing rules through the CFR? Seems like a huge, burdensome process. With over a million cases to hear, some rules are needed just to keep the wheels turning. I think it is the normal course of business for every single agency to have "rules" that they utilize to keep things moving. I don't think I have ever had an job anywhere except SSA where folks complained they didn't want to follow the "rules" as much as they do here. Maybe that is because all ALJs are lawyers first and we all know how lawyers are.... LOL!
Now, MOST of the time, the rules are reasonable. But when they are not there are processes to fix the various situations that come about. Give this MSPB case as an example. Now we have a HALLEX rule about interpreters that appears to be an issue and it has been brought to light. It's all a good thing and the process is working. Maybe the rule will change now. Maybe it will be appealed and there will be a different outcome. Who knows.
But bottom line, I think in everyday life at ODAR, most ALJs go about their business and do what they do and they have no issues. Random issues with some management are going to happen just like in ANY job. At least we are dealing with highly educated people who will make their issues known, and follow the process.
I guess I am saying all this because when things like this come up, many people waive their hands in the air and scream the sky is falling.... so like I said earlier and others have mentioned, read the decision and you decide. My take? The sky is not falling. Business as usual will proceed on Monday and the HALLEX will still be binding. I will continue to follow these rules. Do I agree with everything in the HALLEX? Well, what does that matter? It's a job and when the day comes that I am the big dog making the rules, maybe I will do something different, maybe not. Until then, I do what they say. Peace out.
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Post by factfinder on Sept 20, 2015 18:19:25 GMT -5
Some agencies have detailed hearing rules similar to Fed R. Civ.Proc. in their part of the CFR. Interestingly, most agencies (unlike SSA) leave it up to the judge to exercise their discretion for things like translators, notice, etc. Some agency ALJs have their own ground rules for complex litigation for day to day litigation management and the overseeing circuit courts usually have no problem with them.
I think if HALLEX conflicts with an exercise of your sound discretion then SSA has probably gone to far, bit perhaps you have to follow it. If the HALLEX conflicts with the CFR, then SSA should lose if they say you must follow it.
When I was a SSA judge, I had difficulty keeping up with all the crap on HALLEX and all the other "guidance" we were supposed to follow and do 500+ dispositions..
ON another front, I hear the AJs who review the ALJ opinions on the Appeals Council have a point system and they get more points for a remand or other negative action against ALJs. It is a wonder SSA can even get out of its own way with nonsense like that.
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Post by cafeta on Sept 20, 2015 23:54:22 GMT -5
Some agencies have detailed hearing rules similar to Fed R. Civ.Proc. in their part of the CFR. Interestingly, most agencies (unlike SSA) leave it up to the judge to exercise their discretion for things like translators, notice, etc. Some agency ALJs have their own ground rules for complex litigation for day to day litigation management and the overseeing circuit courts usually have no problem with them. I think if HALLEX conflicts with an exercise of your sound discretion then SSA has probably gone to far, bit perhaps you have to follow it. If the HALLEX conflicts with the CFR, then SSA should lose if they say you must follow it. When I was a SSA judge, I had difficulty keeping up with all the crap on HALLEX and all the other "guidance" we were supposed to follow and do 500+ dispositions.. ON another front, I hear the AJs who review the ALJ opinions on the Appeals Council have a point system and they get more points for a remand or other negative action against ALJs. It is a wonder SSA can even get out of its own way with nonsense like that. I can't weigh in on the AJ point system, although my experience suggests there are more points for a decline to review than a remand, but I defer to Sgt. Schultz on that one. I do agree that the HALLEX is cumbersome, if not burdensome. But the question arises, and I apologize if this is an ignorant query, but are the ALJs in other agencies also inquisitorial,as in SSA? I thought many were not. Seems to me that would make a significant difference, especially with complex litigation versus disability adjudication. My experience tells me that the courts consider decisions from SSA's inquisitorial ALJs in context with the claimant's weaker position, I.e., it is Big Government v. Little Person. Not saying that is so, but that that is often the court's perspective!
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Post by Deleted on Sept 21, 2015 7:02:27 GMT -5
My query to all this addresses the unaddressed elephant in the room:
Why isn't the CALJ (e.g. the Chief representative of all ALJs) standing in support of the ALJ in this case rather than in opposition?
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Post by hopefalj on Sept 21, 2015 8:08:06 GMT -5
Recommend everyone read the decision. The real issue was whether HALLEX could require the ALJ to put a translator in the hearing room when the CFR left it to his discretion. (The reason he did not is interesting - he was evaluating English speaking ability, plus there were real issues as to this being an improper practice by claimant reps - imagine that.) Judge Devine really got it - if the CFR leaves it to the judge's discretion, then a non binding HALLEX does not matter. This is not a Chevron case at all IMO. This is a personnel case where the judge argued discretion allegedly trumped by HALLEX as put forth according to SSA. Potentially a huge case for judges. Will be interesting to see what the MSPB does with it is SSA appeals. Personally, HALLEX is an embarrassment to SSA and they ought to publish it in the Fed Reg or public comment or take it down. Again, while the decision says this, it's a hollow victory. The decision also clearly states that "Pursuant to SSA regulations, ALJs are required to comply with Appeals Council orders." One of the AC's favorite things to remand is a case where an ALJ fails to comply with HALLEX. It's a favorite because they don't even have to open the decision to remand it. It's just an automatic reason to send it back. So while HALLEX may not technically be binding on ALJs, it is as a practicality. If your point is failure to follow HALLEX can't be the basis for a disciplinary action, then that's another matter.
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Post by JudgeRatty on Sept 21, 2015 8:40:44 GMT -5
Recommend everyone read the decision. The real issue was whether HALLEX could require the ALJ to put a translator in the hearing room when the CFR left it to his discretion. (The reason he did not is interesting - he was evaluating English speaking ability, plus there were real issues as to this being an improper practice by claimant reps - imagine that.) Judge Devine really got it - if the CFR leaves it to the judge's discretion, then a non binding HALLEX does not matter. This is not a Chevron case at all IMO. This is a personnel case where the judge argued discretion allegedly trumped by HALLEX as put forth according to SSA. Potentially a huge case for judges. Will be interesting to see what the MSPB does with it is SSA appeals. Personally, HALLEX is an embarrassment to SSA and they ought to publish it in the Fed Reg or public comment or take it down. Again, while the decision says this, it's a hollow victory. The decision also clearly states that "Pursuant to SSA regulations, ALJs are required to comply with Appeals Council orders." One of the AC's favorite things to remand is a case where an ALJ fails to comply with HALLEX. It's a favorite because they don't even have to open the decision to remand it. It's just an automatic reason to send it back. So while HALLEX may not technically be binding on ALJs, it is as a practicality. If your point is failure to follow HALLEX can't be the basis for a disciplinary action, then that's another matter. Hope raises a good point with all of this discussion. We are talking about a mix of issues here: (1) failure to follow HALLEX and AC remands and (2) failure to follow HALLEX and disciplinary actions. Much overlap but I am not going to monkey with my remand rate or my job because I may disagree with a policy. I plan to leave that up to the policy makers and just do my job.
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Post by sealaw90 on Sept 21, 2015 8:42:53 GMT -5
Can someone please put a WORKING link to the case on this board? I cannot find the case or when I do the link doesn't work. ALJ Butler has been quite a litigious judge...fascinating, to quote a certain Vulcan.
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Post by Deleted on Sept 21, 2015 10:12:11 GMT -5
If I may so make another IMHO observation. In the overall scenario of disposing of case, was this entire matter "absolutely" necessary to case disposition; or was this an example of intra-agency infighting?
Claimant, who may or may not speak English, requests an interpreter. My response; get an interpreter. That act literally requires nothing more than physically dialing a telephone at the hearing. It is not a major event. Get the interpreter, have the hearing, dispose of the case, move on. What would be the point of argument here against getting an interpreter? For those of us who speak Spanglish, I commonly hear claims where an interpreter is requested, provided, and the claimant will routinely lapse into answering questions in English midway through the hearing much to the roll of the eyes of the rep. Or, better, after close of the hearing I will thank the claimant for coming in and wish him a good day..in Spanish. At which the point the claimant responds in surprise in English "Wait, you understood everything I said today in Spanish??" which gets him nothing more than a smile from me.
Hear the claim, decide the claim, move the claim appears to be the more logical solution.
If on the other hand the whole purpose of this appeal was an intra-agency tit-for-tat between the ALJ and the CALJ over who is running the show, my response there is to look at who signs my paycheck every other week. If my name is not the signature issuing that paycheck to me, then I pretty much do what I am told to do, be that "policy", "regulation" or simply "because we said so".
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