The CARES/AAJ Issue
The SSA proposal to have the Appeals Council double in size to take on a small portion of the pending backlog has been contentious. AALJ has vigorously opposed this attempt to undermine the public's right to a hearing before an Administrative Law Judge appointed under the APA. This proposal would allow the attorney examiners at the AC (internally called Administrative Appeals Judges by the Agency) to hear approximately 10,000 non-DIB cases, such as overpayments, and 30,000 cases for supplemental hearings that would otherwise be remanded to ALJs. Those claimants whose cases were heard under this proposal would have no other right of appeal within the Agency. Their appeal would be to a U.S. district court. For many of our claimants, that effectively means they have no further right of appeal given the cost of such appeals. Prior to her election as president, Judge Zahm informed the NEB about this issue at a special meeting of the NEB, expressing her strong concerns about this program.
Senator James Lankford (R-OK) wrote to Acting Commissioner Colvin expressing his concerns about this program. Particularly concerning was the effect on claimants' due process rights under the APA. Acting Commissioner Colvin responded to Senator Lankford, and explained SSA's position on this program. See her attachments to this letter here, here, here, and here. AALJ was able to obtain a legal opinion from Dean Harold J. Krent of the IIT Chicago-Kent College of Law, a noted expert on administrative law, which concluded that the AAJ program was ultra vires. A hearing on this issue was scheduled for May 12, 2016, before the Senate Homeland Security and Governmental Affairs Subcommittee on Regulatory Affiars and Federal Managment. Statements were submitted prior to the hearing by Deputy Commissioner Theresa Gruber, OPM Associate Director Joseph Kennedy, and AALJ President Marilyn Zahm. Senator Lankford's opening statement can be seen here. Senator Lankford asked President Zahm a question regarding her opinion as to why there is a backlog. The opening statement of the Ranking Member, Senator Heidi Heitkamp (D-ND), can be seen here, along with the parts of the hearing where she particularly questioned the participants. Senator Heitkamp asked Deputy Commissioner Gruber if she would hit the "pause button" on this program. The entire hearing can be seen at the senate video site (there is approximately 20 minutes at the start which is blank, as the hearing started late).
AALJ is not the only organization expressing concern about SSA's proposal. The Forum of US Administrative Law Judges sent a letter, as did the Federal Administrative Law Judges Conference and the ABA. The issues were reported in a Huffington Post article, which was copied onto the NOSSCR website. IFPTE, our parent union, highlighted President Zahm's testimony, and Senator Lankford's press release after the hearing emphasized his concerns.
President Zahm was to meet with Deputy Commissioner Gruber at the end of May. AALJ is working hard to have this program withdrawn. It will have very little impact on the overall backlog, and it deprives a class of claimants of their right to a due process hearing in front of a judge who has qualified judicial independence under the APA. For those claimants who would be caught by this net, it's fundamentally unfair.