|
Post by ba on Oct 20, 2015 15:46:22 GMT -5
Yes, appointed counsel. Mea Culpa. The prior attempts to impose the higher scrutiny due process protections via the right to counsel in SSA claims have been tried and failed in courts as those rights arise under the 6th and 14th amendments (e.g., criminal proceedings) and are not applicable to lesser scrutiny administrative proceedings such as SSA.
Once the Congress turns these SSA matters into adversarial hearings (which IMHO Congress should asap) then the higher due process rights would likely attach.
Papa- Appointed counsel for indigents isn't even required in adversarial civil proceedings, including criminal post-conviction proceedings. Making the agency pay for claimants to have lawyers in administrative proceedings will never happen and, frankly, shouldn't. It would be nice to have the ability to appoint counsel in the exceptional indigent case (serious cognitive issues), but that is just an insane expense that we don't even do in adversarial Article III litigation.
|
|
Deleted
Deleted Member
Posts: 0
|
Post by Deleted on Oct 20, 2015 16:56:11 GMT -5
Agree, that is why even in an adversarial setting, the complete and full due process rights will likely never attach.
The main point however should be that this is all a non-issue for ALJs. Video or live? Adversarial or not? In the end, ALJs will still be handed their scheduled docket and will still hear the cases and still be responsible for disposing of them regardless of the Congressional due processes afforded to claimants or not.
These video vs live vs adversarial vs due process rights contests etc are claimant and rep issues to pursue. Will they do so? Extremely unlikely the national firms will ever allow that to happen.
|
|
|
Post by cafeta on Oct 20, 2015 23:41:11 GMT -5
Yes, appointed counsel. Mea Culpa. The prior attempts to impose the higher scrutiny due process protections via the right to counsel in SSA claims have been tried and failed in courts as those rights arise under the 6th and 14th amendments (e.g., criminal proceedings) and are not applicable to lesser scrutiny administrative proceedings such as SSA.
Once the Congress turns these SSA matters into adversarial hearings (which IMHO Congress should asap) then the higher due process rights would likely attach.
Papa- Appointed counsel for indigents isn't even required in adversarial civil proceedings, including criminal post-conviction proceedings. Making the agency pay for claimants to have lawyers in administrative proceedings will never happen and, frankly, shouldn't. It would be nice to have the ability to appoint counsel in the exceptional indigent case (serious cognitive issues), but that is just an insane expense that we don't even do in adversarial Article III litigation. But to what degree is counsel necessary for due process, even with serious cognitive issues, when the proceeding is inquisitorial, and where your duty to develop the record is even greater with an unrepresented claimant with cognitive/mental health issues. I understand in an adversarial proceeding involving loss of liberty, etc., but that is a completely different animal than an administrative inquisitorial hearing and, thus, is not the case here, as Papa pointed out!
|
|
|
Post by ba on Oct 21, 2015 7:07:18 GMT -5
Papa- Appointed counsel for indigents isn't even required in adversarial civil proceedings, including criminal post-conviction proceedings. Making the agency pay for claimants to have lawyers in administrative proceedings will never happen and, frankly, shouldn't. It would be nice to have the ability to appoint counsel in the exceptional indigent case (serious cognitive issues), but that is just an insane expense that we don't even do in adversarial Article III litigation. But to what degree is counsel necessary for due process, even with serious cognitive issues, when the proceeding is inquisitorial, and where your duty to develop the record is even greater with an unrepresented claimant with cognitive/mental health issues. I understand in an adversarial proceeding involving loss of liberty, etc., but that is a completely different animal than an administrative inquisitorial hearing and, thus, is not the case here, as Papa pointed out! Which is why I said it would be nice.
|
|
|
Post by privateatty on Oct 21, 2015 15:59:16 GMT -5
Papa- Appointed counsel for indigents isn't even required in adversarial civil proceedings, including criminal post-conviction proceedings. Making the agency pay for claimants to have lawyers in administrative proceedings will never happen and, frankly, shouldn't. It would be nice to have the ability to appoint counsel in the exceptional indigent case (serious cognitive issues), but that is just an insane expense that we don't even do in adversarial Article III litigation. But to what degree is counsel necessary for due process, even with serious cognitive issues, when the proceeding is inquisitorial, and where your duty to develop the record is even greater with an unrepresented claimant with cognitive/mental health issues. I understand in an adversarial proceeding involving loss of liberty, etc., but that is a completely different animal than an administrative inquisitorial hearing and, thus, is not the case here, as Papa pointed out! And that is why this insistence on using the term "non-adversarial" with the APA requirement of due process is so fraught with confusion to the reader not versed in ODAR procedure; i.e., a private attorney ALJ applicant for instance. To begin with, as I have posted before, simply because you have a non-represented Claimant before you with say a 75 IQ does not mean that the relevant Judge is conducting a non-adversarial hearing. Yes, it is not contested in the way a federal bench trial is with attorneys on both sides objecting to the form of the question--we all get that. Further, as pointed out, the ODAR ALJ in this instance has not just a legal/ODAR duty to develop the record, ask leading questions (if necessary) of the Claimant in question, make sure that relevant witnesses are called and ensure that he gets any and all records that are needed. However, to the Claimant it must be adversarial because he or she knows that they have waited two years to get this hearing and that they have been denied twice before. Further, if they get denied again chances are they are going back to living in the basement of their crazy cousin. Their (the ALJ's duty) is ethical and moral as well given the harsh facts of the life of each Claimant they must face each day. So to me, its adversarial because either the Trust Fund or the Claimant's ox will get gored. Secondly, due process is inherent in the APA and the Constitution, as we all know. If you don't have what papa calls a full adversarial hearing does due process thus suffer? Of course not--if you have a Judge who does her or his job the right way. If the record is fully developed and the proper hearing procedures are followed the Supreme Court and all inferior federal courts will sign off on it all day every day. Due process challenges litter the dead on arrival appeal landscape of all of these federal courts. In closing I get what papa is trying to say. But considering for whom we write, I want to ensure that there is no confusion.
|
|