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Post by rp on May 26, 2022 20:28:22 GMT -5
Luca Brasi sleeps with the fishes. Along these lines….so sad about Ray Liotta. Really a great actor and brought to life the mobsters in Goodfellas. And let’s also remember the Field of Dreams! Shoeless Joe Jackson…. RIP Ray. |
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Post by nylawyer on May 27, 2022 9:06:34 GMT -5
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. Sounds like an offer you can't refuse. |
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Post by Top Tier on May 28, 2022 11:04:51 GMT -5
Here's a 2nd case... "The U.S. Court of Appeals for the 5th Circuit issued a 2-1 opinion on May 18 in response to hedge fund manager George Jarkesy and investment adviser Patriot28 challenging the Securities and Exchange Commission’s decision to charge them with securities fraud. The court’s opinion deemed the following unconstitutional: the agency’s adjudication by an in-house enforcement body; Congress giving the SEC the authority to determine if cases should be held in district courts or in-house; and the SEC’s removal restrictions for administrative law judges. The opinion said this violated the Seventh amendment right to a jury, Article I that vests “all” legislative power in Congress and Article II’s “Take Care Clause,” respectively.... James Angel, professor at Georgetown University who specializes in the regulation of financial markets, told Government Executive, “This is just another battle in the long war over the so-called administrative state.” As for precedence for other independent regulatory agencies, he said, “clearly anything that reins in the authorities of administrative law judges or agencies to conduct their own judicial proceedings is going to affect the other agencies as well.” ... Two days before the Fifth Circuit released its decision, the Supreme Court agreed to review another case from the Fifth Circuit, Cochran v. SEC, which “also challenges the SEC’s in-house administrative tribunals,” wrote Proskauer Rose LLP Partner Joshua Newville and Julia Alonzo, senior counsel at the law firm. “Although that case is slightly narrower than Jarksey, the SEC’s adjudicatory ability could hang in the balance of both decisions.” www.govexec.com/management/2022/05/appeals-court-has-delivered-major-blow-independent-agency/367507/ www.ca5.uscourts.gov/opinions/pub/20/20-61007-CV0.pdf |
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Post by carrickfergus on Oct 27, 2022 8:51:26 GMT -5
Petition for rehearing en banc denied in Jarkesy. If this and the CFPB case (both of which were spawned by the 5th Circuit, natch)withstand further appeal, one of the federalist society's wettest dreams will finally come true after playing the long game. Some members of the SCOTUS are openly hostile to the administrative (read: deep) state.
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Post by pumpkin on Oct 27, 2022 13:57:35 GMT -5
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Post by fowlfinder on Oct 27, 2022 15:07:02 GMT -5
Yowzah. No beating around the bush about the issues and what's at stake. |
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Post by christina on Oct 28, 2022 5:12:04 GMT -5
Feeling dumb here-can SSA claimants in federal Court have jury trials? If so seems like if Congress tweaked the SSA so courts review our decisions de novo, wouldn’t our current use of ALJs still suffice?
We handle as much as possible in house as we have done for awhile. Aggrieved claimants can appeal to federal court and can opt for jury trial in my hypothetical scenario.
I’m deliberately avoiding inferior officer v God only knows what Scotus might come up in above scenario. And I imagine I’m way simplifying things. That being said, any thoughts?
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Post by christina on Oct 28, 2022 5:52:59 GMT -5
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. Hmm-good to know. |
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Post by jigjigjig on Oct 28, 2022 8:46:11 GMT -5
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. Hmm-good to know. Doesn't OPM have to authorize that early retirement option? It isn't automatic is it? |
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cle
New Member
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Post by cle on Oct 28, 2022 9:43:49 GMT -5
Feeling dumb here-can SSA claimants in federal Court have jury trials? If so seems like if Congress tweaked the SSA so courts review our decisions de novo, wouldn’t our current use of ALJs still suffice? We handle as much as possible in house as we have done for awhile. Aggrieved claimants can appeal to federal court and can opt for jury trial in my hypothetical scenario. I’m deliberately avoiding inferior officer v God only knows what Scotus might come up in above scenario. And I imagine I’m way simplifying things. That being said, any thoughts? No jury trials in SSA appeals now, but if Congress amended the Social Security Act to give courts de novo review I guess they could agree to jury trials as well. I think the hypothetical new statute might have to state explicitly if they will allow jury trials because it would be a waiver of sovereign immunity. |
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Post by roymcavoy on Oct 28, 2022 11:49:07 GMT -5
As much as some of SCOTUS might hate the APA, et al., I think they and Congress will not be happy with the results of SSA apps going to Fed DC as a first level of fact finding. I think they probably wiggle out an SSA exception somehow because of sheer volume.
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Post by operationalj on Oct 28, 2022 12:42:10 GMT -5
As much as some of SCOTUS might hate the APA, et al., I think they and Congress will not be happy with the results of SSA apps going to Fed DC as a first level of fact finding. I think they probably wiggle out an SSA exception somehow because of sheer volume. Agree. After Lucia, many FDCs remanded as many cases as possible back to SSA to reduce already overwhelmed dockets. |
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Post by bagelone on Nov 21, 2022 19:53:49 GMT -5
Think the Supremes will be sorely tempted to rule that dual level removal protection is unconstitutional. The Federalist Society doesn't approve of the administrative state, and the Supremes thereby eviscerate not only ALJ removal protection, but SES removal protection, in one fell swoop. Such that the job and salary ends for incumbents within 30 days of notice of removal.
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Post by ssaogc on Nov 22, 2022 7:46:03 GMT -5
Think the Supremes will be sorely tempted to rule that dual level removal protection is unconstitutional. The Federalist Society doesn't approve of the administrative state, and the Supremes thereby eviscerate not only ALJ removal protection, but SES removal protection, in one fell swoop. Such that the job and salary ends for incumbents within 30 days of notice of removal. I agree 100 percent. Folks should be ready for the APA to be gutted with a note in decision that congress can take remedial action which of course will never happen in today’s polarized environment. |
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Post by foghorn on Nov 22, 2022 16:23:18 GMT -5
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Post by neufenland on Nov 23, 2022 12:47:37 GMT -5
Think the Supremes will be sorely tempted to rule that dual level removal protection is unconstitutional. The Federalist Society doesn't approve of the administrative state, and the Supremes thereby eviscerate not only ALJ removal protection, but SES removal protection, in one fell swoop. Such that the job and salary ends for incumbents within 30 days of notice of removal. I agree 100 percent. Folks should be ready for the APA to be gutted with a note in decision that congress can take remedial action which of course will never happen in today’s polarized environment. If I had to guess, I would imagine that if, somehow, that came to pass, there would be an EO mandating some sort of due process in ALJ removal cases for the time being (although, the post-Lucia Excepted Service EO remains in force, so who knows?). That might give sitting ALJs at least two years of reassurance. With an EO, of course, it can easily be removed once a different administration takes over. As far as the APA itself: reliance interests in longstanding precedent mean bupkis to at least five members of the current Court. Essentially gutting the New Deal's legacy would not be surprising. Outrageous, yes, but not surprising. |
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Post by bagelone on Nov 23, 2022 17:13:19 GMT -5
Can't really see an EO ensuring more due process for removals, if the Supremes rule that dual layer removal protection is unconstitutional.
Incumbents would still be able to appeal their removals, just like any other federal employee. But their job and pay would stop within 30 days of the notice to remove, just like any other federal employee.
The next administration post Lucia embraced excepted service, as well as the power to replace political appointees irrespective of term. So too, a rejection of dual layer removal protection means incumbent ALJs, as well as incumbent SES members, may more easily be removed.
There's no reason to expect an EO blocking such removals. The net positive of shedding personnel more easily will likely be irresistible to any administration.
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Post by neufenland on Nov 23, 2022 19:35:35 GMT -5
Can't really see an EO ensuring more due process for removals, if the Supremes rule that dual layer removal protection is unconstitutional.Incumbents would still be able to appeal their removals, just like any other federal employee. But their job and pay would stop within 30 days of the notice to remove, just like any other federal employee. The next administration post Lucia embraced excepted service, as well as the power to replace political appointees irrespective of term. So too, a rejection of dual layer removal protection means incumbent ALJs, as well as incumbent SES members, may more easily be removed. There's no reason to expect an EO blocking such removals. The net positive of shedding personnel more easily will likely be irresistible to any administration. The idea being that it's the President who gets to decide what DP he/she wants to give (or not give) to those inferior officers under his/her control. The "dual layer" would not be there since it would be the President who decided what the ALJs should get (I would think that would avoid the unconstitutionality problem, since the removal protection would not be set by Congress via a statute). If it's the President's power via the Appointments Clause that is meant to be protected by a Supreme Court action to void APA removal protections, then I would think an EO providing policy on due process for ALJ removals, from the President, would not run afoul of Art. II. The drawback being is that what an EO giveth, an EO very easily taketh away. You may very well be right that the idea of an EO would not be fully embraced by the current administration. I'm just trying to look for a glimmer of hope. |
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Post by superalj on Nov 23, 2022 22:07:03 GMT -5
I’ve stopped worrying about it as there is nothing we can do except support the Union in any amicus, lobbying or court challenges.
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Post by recoveringalj on Nov 23, 2022 22:21:13 GMT -5
Interesting options if the ADA framework is thrown out. Could a president issue an E.O. requiring executive agencies to obtain permission from the WH before initiating removal? Could Congress pass a statute to that effect?
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