Seila

[carrickfergus]

Loss for the CFPB director, but it's possible that the holding doesn't apply to all agencies: (copy and paste)

The CFPB’s structure has no foothold in history or tradition. Congress has provided removal protection to principal officers who alone wield power in only four isolated instances: the Comptroller of the Currency (for a one-year period during the Civil War); the Office of Special Counsel; the Administrator of the Social Security Administration; and the Director of the Federal Housing Finance Agency. Aside from the one-year blip for the Comptroller of the Currency, these examples are modern and contested; and they do not involve regulatory or enforcement authority comparable to that exercised by the CFPB.Pp. 18–21
...

The Security Administration (SSA) has been run by a single Administrator since 1994. That example, too, is comparatively recent and controversial. President Clinton questioned the constitutionality of the SSA’s new single-Director structure upon signing it into law. See Public Papers of the Presidents, William J. Clinton, Vol. II, Aug. 15, 1994, pp. 1471–1472 (1995) (inviting a “corrective amendment” from Congress). In addition, unlike the CFPB, the SSA lacks the authority to bring enforcement actions against private parties. Its role is largely limited to adjudicating claims for Social Security benefits...



By extension, then, perhaps the Selia holding doesn't apply to SSA ALJs. We will see.

[recoveringalj]

I read the Court’s synopsis. It seemed to emphasis that the Director was a principal officer (and not a multi-member Board), and left Morrison untouched. I’m hopeful the justices were making this distinction deliberately and that it has no applicability to inferior officers.

Edit: I will add that the entire opinion seems to be based on the fallacy that the Constitution divides power everywhere except the Presidency, who is directly accountable “to the people.“ It’s pure legal theology. And as long as our electoral system allows a President to be elected by a minority of the popular vote, it’s also nonsense.

[montyburns]

I read the syllabus and scanned the holdings.  It is bad, but not as bad as it could have been.   The single director thing is hard to  analyze vis a vis ALJs, but one big take away from this case and Lucia seems to be an emerging line between inferior officers who can impose and enforce monetary penalties and those that cannot.  I also found it interesting that there is concern with the preservation of institutional knowledge and expertise , a concept that is hard to square with the separation of powers/accountability of the executive doctrine that the Court otherwise endorses.  

No doubt the door is open to challenge the removal protections for ALJs, but it is not a slam dunk. 
 

[roymcavoy]

Jun 29, 2020 11:54:41 GMT -5 montyburns said:

I read the syllabus and scanned the holdings.  It is bad, but not as bad as it could have been.   The single director thing is hard to  analyze vis a vis ALJs, but one big take away from this case and Lucia seems to be an emerging line between inferior officers who can impose and enforce monetary penalties and those that cannot.  I also found it interesting that there is concern with the preservation of institutional knowledge and expertise , a concept that is hard to square with the separation of powers/accountability of the executive doctrine that the Court otherwise endorses.  

No doubt the door is open to challenge the removal protections for ALJs, but it is not a slam dunk. 
 

I think CJ Roberts’ opinion in DHS v Regents, which relied extensively on the APA and failure to follow its guidelines, seemingly makes ALJ removal without good cause and MPSB review even less likely.

[pumpkin]

Would this be a good time to re-watch the 60 Minutes coverage of the MSPB?

www.cbsnews.com/video/merit-systems-protection-board-appeals-backlog-60-minutes-2020-06-14/#x

[stevil]

Jun 29, 2020 18:37:37 GMT -5 pumpkin said:

Would this be a good time to re-watch the 60 Minutes coverage of the MSPB?

www.cbsnews.com/video/merit-systems-protection-board-appeals-backlog-60-minutes-2020-06-14/#x

What MSPB?

[neufenland]

Jun 30, 2020 7:32:31 GMT -5 Top Tier said:

SEILA LAW LLC v. CONSUMER FINANCIAL PROTECTION BUREAU, No. 19–7. Argued March 3, 2020—Decided June 29, 2020

"The only constitutional defect we have identified in the CFPB’s structure is the Director’s insulation from removal. If the Director were removable at will by the President, the constitutional violation would disappear."

"Because we find the Director’s removal protection severable from the other provisions of Dodd-Frank that establish the CFPB, we remand for the Court of Appeals to consider whether the civil investigative demand was validly ratified."  

www.supremecourt.gov/opinions/19pdf/19-7_n6io.pdf


All that will happen to Administrator Saul is he will lose his for-cause protection, nothing more.

I read the summary of the decision and I'm not even sure that's true.  SSA Administrator is mentioned as one of the several officers who have such a protection, but only the CFPB Director was distinguished as having the executive authority contemplated in the analysis.  I will re-read to make sure I'm not talking nonsense, but I think there's no change to his protections from this decision.   

[neufenland]

Yup, here it is:

"(1) The CFPB’s structure has no foothold in history or tradition. Congress has provided removal protection to principal officers who alone wield power in only four isolated instances: the Comptroller of the Currency (for a one-year period during the Civil War); the Office of Special Counsel; the Administrator of the Social Security Administration; and the Director of the Federal Housing Finance Agency. Aside from the one-year blip for the Comptroller of the Currency, these examples are modern and contested; and they do not involve regulatory or enforcement authority comparable to that exercised by the CFPB."

That's what the Court said, at any rate. Humphrey's Exec. and Morrison are still good precedent, too. It's not a catastrophic decision for ALJs by any means.

[marathon]

We were told today that if, during the hearing or before, someone objected to the appointment of the sitting ALJ on this ground to let the HOCALJ know so a number can be complied for RO. Of note, no further guidance on how to handle the theoretical objection.

[jagvet]

Maybe just overrule and let the Appeals Council figure it out.

Or grant it and walk out.

Or refuse to rule because of it.

[ok1956]

Jul 7, 2020 20:39:36 GMT -5 jagvet said:

Maybe just overrule and let the Appeals Council figure it out.

Or grant it and walk out.

Or refuse to rule because of it.

I like the second choice simply because I’m pretty sure which reps would raise the issue and it would be amusing to grant and hear them squirm. But I wouldn’t be surprised to see this raised for the first time on appeal, which is more likely I think.

[Pixie]

Jul 8, 2020 11:07:18 GMT -5 ok1956 said:

Jul 7, 2020 20:39:36 GMT -5 jagvet said:

Maybe just overrule and let the Appeals Council figure it out.

Or grant it and walk out.

Or refuse to rule because of it.

I like the second choice simply because I’m pretty sure which reps would raise the issue and it would be amusing to grant and hear them squirm. But I wouldn’t be surprised to see this raised for the first time on appeal, which is more likely I think.

Only in the SSA. Pixie

[ok1956]

Jul 8, 2020 11:19:23 GMT -5 Pixie said:

Jul 8, 2020 11:07:18 GMT -5 ok1956 said:

I like the second choice simply because I’m pretty sure which reps would raise the issue and it would be amusing to grant and hear them squirm. But I wouldn’t be surprised to see this raised for the first time on appeal, which is more likely I think.

Only in the SSA. Pixie

Exactly. Sigh

[christina]

FYI Charles hall blog is tracking this thread. Some comments may be best as internal chats than board threads

[TigerLaw]

Jul 8, 2020 12:43:55 GMT -5 christina said:

FYI Charles hall blog is tracking this thread. Some comments may be best as internal chats than board threads

Not only tracking, but giving legal advice to other Attorneys.  This issue is way above my pay grade!  I will note the objection if made and continue doing my job as I do approve 40 to 50% based upon the evidence at the hearing and those folks need the help that they are entitled to under the SSA. 




Jul 8, 2020


SSA Starting To Track Seila Law Objections


"I can't confirm it but there's a report that Social Security is starting to track Seila Law objections to ALJs holding hearings and issuing decisions. This is going to be a nightmare if the Commissioner doesn't resign. Gambling on the Supreme Court finding that it's much more important for the President to manage the Consumer Financial Protection Bureau, an agency that most people have never heard of, than the Social Security Administration which sends a monthly check to one person in five in this country sounds insane to me.

If you're an attorney representing Social Security claimants and you're not filing Seila Law objections you must have paid no attention to what happened with Lucia. I got a bunch of cases remanded because of Lucia. Did you? Don't miss the boat again."

[workdrone]

I find this line of objection to be really amusing. If the rep makes a Selia objection, it's basically a jurisdictional objection about the Commissioner's authority. So does that also mean the rep objects to the telephone hearing format? If so, then it's an automatic postponement under the current rules.

If not, then the rep is talking out of both sides of his/her mouth. I.e. Your Honor, I agree to go forward with the telephonic hearing on behalf of my client and I consent to the Commissioner's jurisdiction so long as you pay my client. However, I'm filing this Selia objection just in case you deny us.

Under this circumstance, I'm inclined to make the rep choose between expressly waiving the objection on the record and going forward or postponing the hearing until we get further clarification about these objections.

I'm not a big fan of people who take inconsistent positions, and I think it's only fair to make them choose which position to take.

[SPN Lifer]

* Seila Selia

[hopefalj]

Jul 8, 2020 15:43:35 GMT -5 workdrone said:

Under this circumstance, I'm inclined to make the rep choose between expressly waiving the objection on the record and going forward or postponing the hearing until we get further clarification about these objections.

This is how I will handle it should the issue arise. They can explain to their client why delaying their case and decision several months or more for a technical challenge is in the claimant's best interest. Of course, as noted above, it'll be like Lucia where it's first raised at the AC level as a result.

[hamster]

Jul 8, 2020 18:01:01 GMT -5 hopefalj said:

Jul 8, 2020 15:43:35 GMT -5 workdrone said:

Under this circumstance, I'm inclined to make the rep choose between expressly waiving the objection on the record and going forward or postponing the hearing until we get further clarification about these objections.

This is how I will handle it should the issue arise. They can explain to their client why delaying their case and decision several months or more for a technical challenge is in the claimant's best interest. Of course, as noted above, it'll be like Lucia where it's first raised at the AC level as a result.

Good idea! That’s how I’ll do it, too. Should be fun. I wonder which “young man” or young woman will raise the issue first?

[nylawyer]

There's a "you're breaking my heart" joke to be made here.