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Post by jagvet on May 20, 2022 15:19:04 GMT -5
Interesting discussion, but bottom line is: No one really knows. We'll just have to watch.
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Post by privateatty on May 21, 2022 9:11:32 GMT -5
Then they better be willing to expand the federal judiciary because getting rid of the ALJ corp wholesale without a replacement will make the federal judiciary look like an underfunded public defenders office after the holidays. I think the majority of the Supreme Court couldn’t give two figs about how their rulings impact people with administrative benefit claims. Justice Scalia famously wrote about this. There is a very old animus against the "administrative state." I can't imagine SCOTUS blowing up the APA without a plan to replace it as SCOTUS is the head of Art. III and the comment about the Federal Judiciary looking like a Public Defender's Office is apt. Please remember that there are a lot of corporate interests served by the present system--SSA may be the biggest ALJ constituency, but hardly the most influential. SEC, Labor, FERC, OMHA, etc are all serving or in their mind, ill-serving the corporate world. That having been said, if they want to make us all Magistrates, fine. But blowing up the ALJ Corps without a replacement plan? Oh, my, absolute chaos. So I'm not worried. This animus I refer to is in my mind, a philosophical push to make us all Art. III Judges. |
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Post by fingerscrossed on May 23, 2022 6:03:33 GMT -5
Article 3 judges have to individually receive Senate confirmation. In my mind there is absolutely no chance of this happening for 2000 ALJs. It is unprecedented and more importantly would eliminate the APA agency head review process. Federal agencies would fight this tooth and nail because they would loose all power, authority and control concerning how their policies and regulations are being interpreted.
If we aren’t careful what’s more likely to occur is we loose our removal protections entirely or keep them but removal is decided by the appointing official and not MSPB. Neither result is good but given the decisions out of this SC and their precedent so far these are the likely outcomes.
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Post by rp on May 23, 2022 9:14:15 GMT -5
Article 3 judges have to individually receive Senate confirmation. In my mind there is absolutely no chance of this happening for 2000 ALJs. It is unprecedented and more importantly would eliminate the APA agency head review process. Federal agencies would fight this tooth and nail because they would loose all power, authority and control concerning how their policies and regulations are being interpreted. If we aren’t careful what’s more likely to occur is we loose our removal protections entirely or keep them but removal is decided by the appointing official and not MSPB. Neither result is good but given the decisions out of this SC and their precedent so far these are the likely outcomes. US Magistrates do not - nor do Bankruptcy judges - 15 year appts under Article I. I would go for that. |
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Post by lawyeredbylaws on May 23, 2022 9:38:26 GMT -5
I’d be careful assuming the Supreme Court actually would care about chaos created at agencies. A majority is overtly hostile to the administrative state. If anything, the chaos is a bonus because it further undermines the federal government.
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Post by neufenland on May 23, 2022 9:57:33 GMT -5
Article 3 judges have to individually receive Senate confirmation. In my mind there is absolutely no chance of this happening for 2000 ALJs. It is unprecedented and more importantly would eliminate the APA agency head review process. Federal agencies would fight this tooth and nail because they would loose all power, authority and control concerning how their policies and regulations are being interpreted. If we aren’t careful what’s more likely to occur is we loose our removal protections entirely or keep them but removal is decided by the appointing official and not MSPB. Neither result is good but given the decisions out of this SC and their precedent so far these are the likely outcomes. US Magistrates do not - nor do Bankruptcy judges - 15 year appts under Article I. I would go for that. I think Magistrates only get 8 years and are appointed by the USDC (Chief Judge?). Bankruptcy Judges are appointed by the Circuit CoA Judges for 14-year terms. Both are Art. I Judges, as you note, so while it might help with the "dual layer" protection from removal (the only layer would be the Art. III overseeing court), it won't help with the crazy 7th Amendment interpretation from the 5th Circuit (assuming SSA claims are considered the same as SEC enforcement actions, which is certainly not a given as they are vastly different). I don't think US Magistrate Judges can hear jury trials (they can preside over misdemeanor trials and civil trials with party consent, but those are all bench, I believe). Bankruptcy proceedings are all bench. The terms for USMJs and Bankruptcy Judges are renewable, too. If you hit a certain time in service, you get to take "Senior Status" subject to recall. That's super-nice as while you might still have to go after your term expires for a bit here and there, you essentially get your full pay in retirement. That's my understanding, but it could be wrong (I could Google, but don't have the time at the moment). Like $200K per year, too. Or close to it. |
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Post by hillsarealive on May 23, 2022 10:18:14 GMT -5
For the removal issue, SSA is different from the SEC because it has a single commissioner instead of a board. The commissioner has statutory removal protections but they didn't stop POTUS from firing Saul. So there is an argument that the dual layer removal thing doesn't apply to SSA ALJs. Aside from that, if you are a plaintiff raising a dual-layer removal argument, then who is supposed to hear your claim on remand? Unlike an SEC enforcement-type action, a social security claimant can't necessarily win by invalidating an ALJ's authority to act.
For the 7th Amendment thing, I'm not convinced that an SEC enforcement action is similar to a trial for fraud at common law. But even if those things are alike, SSA ALJs do something else entirely. What is the closest common law analogy to a hearing on eligibility/entitlement to Social Security disability benefits? No idea, but I am sure that some analogy exists, however attenuated.
This case is a troubling data point, but it doesn't spell doom yet. It is just another step in the doom-ward direction.
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Post by Pixie on May 23, 2022 10:25:02 GMT -5
US Magistrates do not - nor do Bankruptcy judges - 15 year appts under Article I. I would go for that. I think Magistrates only get 8 years and are appointed by the USDC (Chief Judge?). Bankruptcy Judges are appointed by the Circuit CoA Judges for 14-year terms. Both are Art. I Judges, as you note, so while it might help with the "dual layer" protection from removal (the only layer would be the Art. III overseeing court), it won't help with the crazy 7th Amendment interpretation from the 5th Circuit (assuming SSA claims are considered the same as SEC enforcement actions, which is certainly not a given as they are vastly different). I don't think US Magistrate Judges can hear jury trials (they can preside over misdemeanor trials and civil trials with party consent, but those are all bench, I believe). Bankruptcy proceedings are all bench. The terms for USMJs and Bankruptcy Judges are renewable, too. If you hit a certain time in service, you get to take "Senior Status" subject to recall. That's super-nice as while you might still have to go after your term expires for a bit here and there, you essentially get your full pay in retirement. That's my understanding, but it could be wrong (I could Google, but don't have the time at the moment). Like $200K per year, too. Or close to it. The Magistrate Judge jobs aren't always as great as they seem. There are usually several someones looking over their shoulders. I clerked for a D.C. Judge, and he would often complain about one of our Magistrates. I wasn't privy to any conversations my Judge had with the Magistrate, but I wouldn't want to be on the receiving end of that conversation. |
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Post by superalj on May 23, 2022 11:18:31 GMT -5
It was an 8 year when I applied and it’s somewhat political in my opinion.
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Post by jagvet on May 23, 2022 14:01:05 GMT -5
Magistrate Judge get FERS or Judicial retirement, but not salary for life.
I know of two magistrate judges of different districts who were not renewed by their district judges, mostly because of personality conflicts.
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Post by neufenland on May 23, 2022 14:53:44 GMT -5
Magistrate Judge get FERS or Judicial retirement, but not salary for life. I know of two magistrate judges of different districts who were not renewed by their district judges, mostly because of personality conflicts. My bad. I think the Bankruptcy Judges get the "Senior Status," though. Right? Their terms are longer. I thought the Magistrates would have to be reappointed beyond the first 8 years to get the status, but I guess they don't get it at all. I'll Google when I have a free second this evening. |
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Post by neufenland on May 23, 2022 15:05:02 GMT -5
It was an 8 year when I applied and it’s somewhat political in my opinion. I've never bothered to apply as I figured you had to know the USDC judges fairly well (former clerk or practice in front of them all the time). |
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Velma
Full Member
Posts: 36
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Post by Velma on May 24, 2022 13:59:31 GMT -5
For the removal issue, SSA is different from the SEC because it has a single commissioner instead of a board. The commissioner has statutory removal protections but they didn't stop POTUS from firing Saul. So there is an argument that the dual layer removal thing doesn't apply to SSA ALJs. Velma: The dual layer actually refers to the fact that ALJs have removal protections under the APA and the determination of cause for removal is decided by MSPB judges who also have removal protections. SSA unlike other agencies actually had a triple layer that was essentially struck down in the Seila Law case which is how the Commissioner was ultimately removed. There were rumblings he was going to challenge his removal, but Seila Law was pretty clear that a single agency head of an independent federal agency cannot be insulated from removal at will by the President. |
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Post by hillsarealive on May 24, 2022 15:13:10 GMT -5
I apologize if I misconstrued the meaning of dual layer. I may have been counting the wrong layers. But would it be correct to say that SSA ALJs have one less layer of "insulation" than SEC ALJs?
Here's a relevant quote from the 5th Circuit's decision:
The question here is whether SEC ALJs serve sufficiently important
executive functions, and whether the restrictions on their removal are
sufficiently onerous, that the President has lost the ability to take care that
the laws are faithfully executed. Petitioners’ argument on this point is
straightforward: SEC ALJs are inferior officers; they can only be removed by
the SEC Commissioners if good cause is found by the Merits Systems
Protection Board; SEC Commissioners and MSPB members can only be
removed by the President for cause; so, SEC ALJs are insulated from the
President by at least two layers of for-cause protection from removal, which
is unconstitutional under Free Enterprise Fund. . . . We agree with Petitioners . . .
SEC commissioners can only be removed for good cause. Post-Seila, there is no such restriction on removing the Commissioner of SSA (as shown by Saul's firing). In this way, SSA ALJs are less insulated from removal than SEC ALJs.
**edited to fix formatting of block quote**
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Post by superalj on May 25, 2022 21:38:29 GMT -5
The Union addressed there newsletter and made me feel somewhat better as their analysis was more than reasonable. I was always uncomfortable with the prior Union leadership’s stance that SSA ALJs are inferior officers. SCOTUS has never held such and from my days as a criminal defense lawyer, never stipulate to anything.
Hopefully, we will end up with some strong language regarding our independence in the contract if our union survives after 2024. Regardless, check out the newsletter, it’s a good read.
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Post by rp on May 26, 2022 7:00:10 GMT -5
Perhaps the excepted service - and I say perhaps. But for those of us in competitive service, how would we be removed? Just curious about that theory. There is literally no difference in the applicability 5 USC 7521 to competitive or excepted service ALJs. I think I have been looking at this all wrong. If I am to be involuntarily separated and cannot be offered the same or similar position then I am eligible for involuntarily retirement. I will take that. |
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Post by caroline on May 26, 2022 16:00:54 GMT -5
What is involuntary retirement (asking for a friend)?
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Post by nylawyer on May 26, 2022 18:03:52 GMT -5
What is involuntary retirement (asking for a friend)? It's a euphemism. Like sleeping with the fishes. |
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Post by superalj on May 26, 2022 20:21:20 GMT -5
Luca Brasi sleeps with the fishes.
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Post by rp on May 26, 2022 20:24:15 GMT -5
What is involuntary retirement (asking for a friend)? It's a euphemism. Like sleeping with the fishes. hahaha…. Not quite. If you are 50 or older and have 20 years federal service or 25 years of federal service and any age, and your position is eliminated and there isn’t a comparable position for you, you can retire with an immediate annuity and no reduction. Also you will get a social security supplement until you are 62. That’s my plan if they decide that I am done as an ALJ due to these removal issues. As I stated in other posts, however, I will happily take a position that is compatible to a Bankruptcy judge. I am happy to keep working. Either/or. |
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