ALJ Protections at Issue

[hopefalj]

Jan 4, 2024 23:29:19 GMT -5 jagvet said:

From 2016 through 2021, we heard over and over how the last administration was going to fire all of the ALJs and hire "cousin Wilber." Hey, Henny Penny and Chicken Little: The sky is not falling. Please stop with this nonsense. It's only your ego which makes you think you are so important as to be fired. As I recall, the only SSA firing in memory was the Commissioner and Deputy Commissioner. Oh, wait a minute. Biden did that. Oops. I mean it was Putin.

We heard similar concerns from another illustrious poster 1-2 years ago, too, about the current administration.

I’m not at the point of being overly concerned as of yet, but I will say that I have a little bit more concern about someone promising the elimination of the career bureaucrats in the deep state during his revenge tour than someone who has (unfortunately) largely ignored Social Security during his time. I don’t have a lot of concern at this point since I don’t think I’m on his list, or if I am, I am hopefully far enough down to last 4 years. If not, there are other jobs in the sea.

[neufenland]

ALJs are safe…I think.  For now.  

The Supreme Court did not touch the issue of ALJ removability in the Jarkesy opinion.

I guess, technically, those in the 5th Circuit are impacted, but I can’t see that Court’s opinion controlling the government’s HR decisions…for now.

Should the winds change in January, an EO relying on the 5th Circuit’s Jarkesy opinion would not surprise me. There would, of course, be litigation to follow and, probably, a split in the circuits. Supreme Court would eventually have to get to the issue.  

[generalsherman]

I wonder how long it is until someone asks for a jury trial after getting tagged with a Social Security overpayment.

[atlattadv]

Jun 27, 2024 9:32:22 GMT -5 generalsherman said:

I wonder how long it is until someone asks for a jury trial after getting tagged with a Social Security overpayment.

Good point. At OMHA, a lot of cases involve overpayments to providers and suppliers of medical services, so expanding the ruling to address overpayments would have huge implications here. I haven’t reviewed the Supreme Court opinion yet, but I think one could differentiate the government’s action of recouping an improperly made payment from assessing a penalty for fraud or the like. However, I have no doubt the issue will be litigated…We avoid making findings of “fraud” but there is a fine line (pun intended) in some cases between accusing a party of fraud and finding someone “at fault” for creating an overpayment.

[carrickfergus]

I agree that for 7th amendment purposes a distinction can be drawn between civil penalties and recovery/clawback of improper benefits. To make the point that the majority's opinion will have far-reaching consequences, the dissent ID's several agencies that can impose civil penalties, and SSA of course isn't among them.

I don't see how this distinction applies to the issue of ALJ protections, though. But if a new administration tries to do what it expressly stated it would, hopefully there will be enough speed bumps to delay those actions until the next one comes in. Or at least until I retire.

[neufenland]

Jun 27, 2024 12:33:21 GMT -5 carrickfergus said:

I agree that for 7th amendment purposes a distinction can be drawn between civil penalties and recovery/clawback of improper benefits. To make the point that the majority's opinion will have far-reaching consequences, the dissent ID's several agencies that can impose civil penalties, and SSA of course isn't among them.

I don't see how this distinction applies to the issue of ALJ protections, though. But if a new administration tries to do what it expressly stated it would, hopefully there will be enough speed bumps to delay those actions until the next one comes in. Or at least until I retire.

It would appear that agencies can still do civil penalties for matters that are not akin to actions at common law.  The majority distinguishes Jarkesy from Atlas Roofing, and the latter involved civil penalties for safety regulations that “bring no common law soil with them.” I would think that agencies which impose civil penalties for safety standards violations (or other similar type of regulatory violation) would be fine.  I don’t think you’d get a jury trial for smoking on an airplane, for instance (in violation of the Federal Aviation Regulations).  

[ssaogc]

Jun 27, 2024 12:33:21 GMT -5 carrickfergus said:

I agree that for 7th amendment purposes a distinction can be drawn between civil penalties and recovery/clawback of improper benefits. To make the point that the majority's opinion will have far-reaching consequences, the dissent ID's several agencies that can impose civil penalties, and SSA of course isn't among them.

I don't see how this distinction applies to the issue of ALJ protections, though. But if a new administration tries to do what it expressly stated it would, hopefully there will be enough speed bumps to delay those actions until the next one comes in. Or at least until I retire.

Those speed bumps you mention will be flattened on day one. Just like schedule F will be reissued on day one. That is a campaign promise that will be kept. And I personally do not doubt that ALJs will be included in schedule E. Challenged in the courts? Well there is no question on how the super majority in SCOTUS leans. 

protectdemocracy.org/work/trumps-schedule-f-plan-explained/#:~:text=In%20October%202020%2C%20the%20Trump,to%20the%20president%20when%20hiring.

[jimmyjiggles]

Jun 27, 2024 11:20:21 GMT -5 atlattadv said:

Jun 27, 2024 9:32:22 GMT -5 generalsherman said:

I wonder how long it is until someone asks for a jury trial after getting tagged with a Social Security overpayment.

Good point. At OMHA, a lot of cases involve overpayments to providers and suppliers of medical services, so expanding the ruling to address overpayments would have huge implications here. I haven’t reviewed the Supreme Court opinion yet, but I think one could differentiate the government’s action of recouping an improperly made payment from assessing a penalty for fraud or the like. However, I have no doubt the issue will be litigated…We avoid making findings of “fraud” but there is a fine line (pun intended) in some cases between accusing a party of fraud and finding someone “at fault” for creating an overpayment.

OMHA cases are basically contract disputes, whether overpayment or simply denial of payment. Provider contracts with Medicare, provides service, Medicare doesn’t pay- sounds like a contract dispute to me. Part C and D cases are clearly contract disputes. Those are common law issues without doubt.

Whether providers/suppliers feel like a jury trial is a better “bang for their buck” than ALJ hearing I don’t know (though I seriously doubt it would be); I think some providers will at least insist on the option. And for sure half the beneficiaries/enrollees filing appeals will want a jury trial.

Fun times