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Post by carrickfergus on Jul 15, 2021 11:06:30 GMT -5
Charles Hall pointed out that it contained this language:
Administrative Appeals Hearings.—The Committee considers the Final Rule ‘‘Hearings Held by Administrative Appeals Judges of the Appeals Council’’ (85 Fed. Reg. 73138, December 16, 2020) to be an unjustified erosion of due process for individuals who are appealing a denial of Social Security or SSI benefits. As part of a beneficiary’s right to an impartial appeal process, an on-the-record hearing, conducted by an impartial judge with decisional independence, must be conducted in accordance with the Administrative Procedure Act to ensure due process, without agency interference,or political bias. Replacing this appeals step and the role of independent administrative law judges (ALJs) with SSA employees jeopardizes the independence of the process. In light of the harm that would be caused by this policy change, the Committee strongly urges SSA not to exercise this authority.
Administrative Law Judge Selection.—The Committee continues to be deeply concerned about the impact of Presidential Executive Order 13843 (July 10, 2018) on the judicial independence of administrative law judges (ALJs). The Order eliminates the competitive hiring process for ALJs and has the potential impact of converting independent adjudicators to political appointees, undermining longstanding principles of fair and unbiased consideration of matters of vital importance to the American people. ALJs must be independent decision-makers and it is the Committee’s expectation that SSA maintain the highest standards for appointment of ALJs.
docs.house.gov/meetings/AP/AP00/20210715/113908/HMKP-117-AP00-20210715-SD003.pdf#page=328
(pp. 326 and 327)
I anticipate that new SSA leadership might be receptive to the first item. Unsure of how the second item will shake out considering Biden's recent E.O. |
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Post by nylawyer on Jul 15, 2021 14:10:31 GMT -5
I would not be surprised if the current administration set aside the idea of having AAJs hearing cases, if for no other reason than "Trump = Bad".
As for the second part, there is a middle ground. SSA could design it's own "objective" screening process. It can give an examination, just like OPM did, but with one big difference, they can include substantive law for SSA in the test.
That would get the agency 80% of what they want. And if there is some high producing writer or GS who can't pass the exam? Maybe that means something too.
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Post by fowlfinder on Jul 15, 2021 14:35:41 GMT -5
Markups were approved by the full committee. On to the House floor.
And the Senate is still playing close to the vest.
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Post by rightspeech on Jul 15, 2021 14:48:43 GMT -5
Replacing this appeals step and the role of independent administrative law judges (ALJs) with SSA employees jeopardizes the independence of the process.
ALJs are SSA employees No? At this point, what's the difference between an AAJ and an ALJ? just performance reviews? |
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Post by Ace Midnight on Jul 15, 2021 15:35:59 GMT -5
ALJs are SSA employees No? That is the $64,000 question. If ALJs are (inferior) officers of the United States, then they are not employees. I'm not sure what the current union position is, but the prior union leadership was adamant that SSA ALJs were employees, not inferior officers. I find it extraordinarily difficult reading Freytag and Lucia and then concluding that SSA ALJs would be deemed employees and and not inferior officers if the question were put to the United States Supreme Court. There are significant implications and consequences when that question is finally, definitively answered. (ETA: Now, if there is a single cohort that Federal judges would specifically exclude from that definition, it would be the SSA ALJs, but that would be slicing the tomatoes rather thin, beyond Howard Johnson's standards, in my humble opinion.) |
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Post by rightspeech on Jul 16, 2021 6:39:03 GMT -5
Ok but what's the actual difference at this point? If everyone has decisional independence; if SSA can hire whoever they want as ALJ and whoever they want as AAJ; if everyone is in excepted service. I'm sure the AAJ hearing is on the record, its not held in secret. Seems like its getting to the point of just semantics. Just start calling the folks at the Appeals Council ALJs
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Post by roymcavoy on Jul 16, 2021 7:09:48 GMT -5
ALJs are SSA employees No? At this point, what's the difference between an AAJ and an ALJ? just performance reviews? The APA requires formal hearings held "on the record" be conducted by ALJs. Period. The AC AAJs are not ALJs. Ergo, AAJs cannot hold disability hearings. (Superior Officer, Inferior Officer, Employee designations, and thin-sliced tomatoes notwithstanding). also, the SSAct repeatedly and specifically refers to “ALJs” making decisions on disability hearings. So rendering the APA obsolete would still probably require some official change to the CFR |
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Post by ba on Jul 16, 2021 7:35:45 GMT -5
Ok but what's the actual difference at this point? If everyone has decisional independence; if SSA can hire whoever they want as ALJ and whoever they want as AAJ; if everyone is in excepted service. I'm sure the AAJ hearing is on the record, its not held in secret. Seems like its getting to the point of just semantics. Just start calling the folks at the Appeals Council ALJs AAJs can receive bonuses for their decisions and can be terminated for them as well. AAJs are not really judges with statutory protections. They are agency lawyers with a title. The structure is actually necessary for AAJs to be controlled by the agency under the APA. Because AAJs are the designees that sit in for the Commissioner, the Commissioner must have the ability to control their decision making as part of the take care clause. ALJs, on the other hand, are not subject to decisions control by the agency. Their salaries are set by statute and their removal process is as well. This too is in conformity with the APA where, if the initial adjudication is not made by the agency head or heads, it is made by an ALJ with all statutory protections attendant to that position. While the agency may choose to give AAJs more protections internally (this is a bit of an open question now with the take care jurisprudence we are seeing out of the Court), those protections are not statutory and the agency can remove them at any time. One other point. If the agency did as you say, and made ALJs the AC decision makers, then the system would almost certainly be unconstitutional because the Commissioner would not have control over the final agency decision and those AC ALJs would likely be improperly appointed principal officers (like the Administrative Patent Judges were until the SCOTUS severed that provision from their enabling act). |
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Post by rightspeech on Jul 16, 2021 10:07:08 GMT -5
good points.
It kinda just feels like the system is in flux and this movie is not over. Part of me wants to see some AAJ hearings just to see what courts would say.
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Post by someconcerns on Jul 18, 2021 12:48:58 GMT -5
The APA requires formal hearings held "on the record" be conducted by ALJs. Period. The AC AAJs are not ALJs. Ergo, AAJs cannot hold disability hearings. (Superior Officer, Inferior Officer, Employee designations, and thin-sliced tomatoes notwithstanding). also, the SSAct repeatedly and specifically refers to “ALJs” making decisions on disability hearings. So rendering the APA obsolete would still probably require some official change to the CFR I don't think this is correct. The regulations require ALJ hear appeals, but I think the Act is silent on who must hold hearings (would love, however, to be directed to the provisions in the Social Security Act that required ALJ hearings). Congress should amend the Act to make clear that ALJs must hear appeals from recon determinations. |
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Post by neufenland on Jul 18, 2021 12:54:42 GMT -5
good points. It kinda just feels like the system is in flux and this movie is not over. Part of me wants to see some AAJ hearings just to see what courts would say. Until then, here is what the House Appropriations Committee in the Congress says: Administrative Appeals Hearings.—The Committee considers the Final Rule ‘‘Hearings Held by Administrative Appeals Judges of the Appeals Council’’ (85 Fed. Reg. 73138, December 16, 2020) to be an unjustified erosion of due process for individuals who are appealing a denial of Social Security or SSI benefits. As part of a beneficiary’s right to an impartial appeal process, an on-the-record hearing, conducted by an impartial judge with decisional independence, must be conducted in accordance with the Administrative Procedure Act to ensure due process, without agency interference, or political bias. Replacing this appeals step and the role of independent administrative law judges (ALJs) with SSA employees jeopardizes the independence of the process. In light of the harm that would be caused by this policy change, the Committee strongly urges SSA not to exercise this authority. Administrative Law Judge Selection.— The Committee continues to be deeply concerned about the impact of Presidential Executive Order 13843 (July 10, 2018) on the judicial independence of administrative law judges (ALJs). The Order eliminates the competitive hiring process for ALJs and has the potential impact of converting independent adjudicators to political appointees, undermining longstanding principles of fair and unbiased consideration of matters of vital importance to the American people. ALJs must be independent decision-makers and it is the Committee’s expectation that SSA maintain the highest standards for appointment of ALJs... Disability Claims Backlog.—The Committee recognizes that the pandemic disrupted progress SSA made with its initial disability claims backlog, and remains concerned about the adverse impacts disability claim hearings backlogs have on an individual’s ability to access their Social Security benefits. Accordingly, the Committee urges the Commissioner to prioritize the hiring of additional administrative law judges and requisite staff to adjudicate backlogged claims. In addition, the Committee directs the Commissioner to continue to prioritize efforts to reduce wait time disparities across the country by directing resources and workload assistance, as necessary, and to provide the Committee annual reports on efforts to reduce the hearing backlog for Hearing Offices in the bottom twenty of national ranking by average processing time. docs.house.gov/meetings/AP/AP00/20210715/113908/HMKP-117-AP00-20210715-SD003.pdf (Pgs 326-327 of document). If only they belonged to the legislative body with power to do something about it... Although, to be fair, doubtful the President would sign it even if they could squeeze together the votes in both chambers (an apparently impossible task in its own right these days). |
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Post by nappyloxs on Jul 18, 2021 13:33:11 GMT -5
Ok but what's the actual difference at this point? If everyone has decisional independence; if SSA can hire whoever they want as ALJ and whoever they want as AAJ; if everyone is in excepted service. I'm sure the AAJ hearing is on the record, its not held in secret. Seems like its getting to the point of just semantics. Just start calling the folks at the Appeals Council ALJs AAJs can receive bonuses for their decisions and can be terminated for them as well. AAJs are not really judges with statutory protections. They are agency lawyers with a title. The structure is actually necessary for AAJs to be controlled by the agency under the APA. Because AAJs are the designees that sit in for the Commissioner, the Commissioner must have the ability to control their decision making as part of the take care clause. ALJs, on the other hand, are not subject to decisions control by the agency. Their salaries are set by statute and their removal process is as well. This too is in conformity with the APA where, if the initial adjudication is not made by the agency head or heads, it is made by an ALJ with all statutory protections attendant to that position. While the agency may choose to give AAJs more protections internally (this is a bit of an open question now with the take care jurisprudence we are seeing out of the Court), those protections are not statutory and the agency can remove them at any time. One other point. If the agency did as you say, and made ALJs the AC decision makers, then the system would almost certainly be unconstitutional because the Commissioner would not have control over the final agency decision and those AC ALJs would likely be improperly appointed principal officers (like the Administrative Patent Judges were until the SCOTUS severed that provision from their enabling act). Great explanation of why AC is AAJ and not ALJs. I never fully understood it, especially when AC was part of ODAR. I understood the “policy” aspect and is clearer now that there is OAO and OHO, but this is a great legal explanation for why the AAJs are the AC. Fyi, OAO is more than just remands and appeals. It is more of a policy branch of SSA than appeals/court branch. |
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Post by nappyloxs on Jul 18, 2021 13:45:21 GMT -5
also, the SSAct repeatedly and specifically refers to “ALJs” making decisions on disability hearings. So rendering the APA obsolete would still probably require some official change to the CFR I don't think this is correct. The regulations require ALJ hear appeals, but I think the Act is silent on who must hold hearings (would love, however, to be directed to the provisions in the Social Security Act that required ALJ hearings). Congress should amend the Act to make clear that ALJs must hear appeals from recon determinations. For T2, it is 404.929-943. Hearings Before an ALJ. www.ssa.gov/OP_Home/cfr20/404/404-0929.htmT16: www.ssa.gov/OP_Home/cfr20/416/416-1429.htmInteresting is 404.943 regarding adjudication officer. They hold interviews or informal conferences and refer cases for hearings before an ALJ. I found it interesting, because I don’t recall reading it before. |
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Post by someconcerns on Jul 18, 2021 20:32:36 GMT -5
I don't think this is correct. The regulations require ALJ hear appeals, but I think the Act is silent on who must hold hearings (would love, however, to be directed to the provisions in the Social Security Act that required ALJ hearings). Congress should amend the Act to make clear that ALJs must hear appeals from recon determinations. For T2, it is 404.929-943. Hearings Before an ALJ. www.ssa.gov/OP_Home/cfr20/404/404-0929.htmT16: www.ssa.gov/OP_Home/cfr20/416/416-1429.htmInteresting is 404.943 regarding adjudication officer. They hold interviews or informal conferences and refer cases for hearings before an ALJ. I found it interesting, because I don’t recall reading it before. Right, those are the regulations. |
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Post by nappyloxs on Jul 20, 2021 3:11:08 GMT -5
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Post by someconcerns on Jul 20, 2021 9:50:11 GMT -5
Until then, here is what the House Appropriations Committee in the Congress says: Administrative Appeals Hearings.—The Committee considers the Final Rule ‘‘Hearings Held by Administrative Appeals Judges of the Appeals Council’’ (85 Fed. Reg. 73138, December 16, 2020) to be an unjustified erosion of due process for individuals who are appealing a denial of Social Security or SSI benefits. As part of a beneficiary’s right to an impartial appeal process, an on-the-record hearing, conducted by an impartial judge with decisional independence, must be conducted in accordance with the Administrative Procedure Act to ensure due process, without agency interference, or political bias. Replacing this appeals step and the role of independent administrative law judges (ALJs) with SSA employees jeopardizes the independence of the process. In light of the harm that would be caused by this policy change, the Committee strongly urges SSA not to exercise this authority. Administrative Law Judge Selection.— The Committee continues to be deeply concerned about the impact of Presidential Executive Order 13843 (July 10, 2018) on the judicial independence of administrative law judges (ALJs). The Order eliminates the competitive hiring process for ALJs and has the potential impact of converting independent adjudicators to political appointees, undermining longstanding principles of fair and unbiased consideration of matters of vital importance to the American people. ALJs must be independent decision-makers and it is the Committee’s expectation that SSA maintain the highest standards for appointment of ALJs... Disability Claims Backlog.—The Committee recognizes that the pandemic disrupted progress SSA made with its initial disability claims backlog, and remains concerned about the adverse impacts disability claim hearings backlogs have on an individual’s ability to access their Social Security benefits. Accordingly, the Committee urges the Commissioner to prioritize the hiring of additional administrative law judges and requisite staff to adjudicate backlogged claims. In addition, the Committee directs the Commissioner to continue to prioritize efforts to reduce wait time disparities across the country by directing resources and workload assistance, as necessary, and to provide the Committee annual reports on efforts to reduce the hearing backlog for Hearing Offices in the bottom twenty of national ranking by average processing time. docs.house.gov/meetings/AP/AP00/20210715/113908/HMKP-117-AP00-20210715-SD003.pdf (Pgs 326-327 of document). If only they belonged to the legislative body with power to do something about it... Although, to be fair, doubtful the President would sign it even if they could squeeze together the votes in both chambers (an apparently impossible task in its own right these days). This ^^^^!! It would be pretty simple to add a sentence to 42 USC 405(b) requiring that hearings be held by ALJs. |
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otter
New Member
Posts: 16 
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Post by otter on Jul 20, 2021 20:58:21 GMT -5
Heard through the FALJC grapevine, HR 4448 aims to put ALJs back in competitive service.
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Post by roymcavoy on Jul 20, 2021 21:40:09 GMT -5
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Post by rightspeech on Jul 20, 2021 22:22:58 GMT -5
Perhaps I will stand corrected in saying the register is dead. Hope it passes.
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Post by neufenland on Jul 21, 2021 12:10:25 GMT -5
Perhaps I will stand corrected in saying the register is dead. Hope it passes. I'd bet that if Congress somehow got ALJ competitive service restored and the President signed the bill, the old register would be just as dead as it is now. I don't see a Lazarus situation. Instead, there will be some new pain in store for all of us. That's my guess, at any rate. |
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