Identification Number:
EM 18003 REV
Intended Audience:All OHO/OARO/OAO
Originating Office:Office of Hearings Operations
Title:Important Information Regarding Possible Challenges to the Appointment of Administrative Law Judges in SSA’s Administrative Process--UPDATE
Type:EM - Emergency Messages
Program:Title II (RSI); Title VIII (SVB)
Link To Reference:See References at the end of this EM
 
Retention Date: December 26, 2018



A. What is the purpose of this Emergency Message?

This emergency message replaces EM 18003, and provides updated information about litigation involving the constitutional status of administrative law judges (ALJ) in the Securities and Exchange Commission (SEC). The emergency message directs ALJs to acknowledge Appointments Clause arguments raised in connection with the appeal of an administrative action without discussing or making any findings on any such arguments. This message also provides instructions in the Case Processing and Management System (CPMS) and the Appeals Review Processing System (ARPS) for flagging cases in which claimants or representatives raise such arguments.

B. What is the background behind this Emergency Message?

On June 21, 2018, the Supreme Court of the United States held, in Lucia v. SEC, No. 17-130, 2018 WL 3057893, that the SEC’s ALJs were inferior officers within the meaning of the Constitution’s Appointments Clause. In light of the Supreme Court’s decision in Lucia, adjudicators may see challenges from claimants and representatives during the Social Security Administrations’ (SSA’s) administrative process related to the constitutionality of the appointment of SSA’s ALJs.

The Office of the General Counsel (OGC), in consultation with the Department of Justice, is reviewing the decision to determine whether, and to what extent, it may affect SSA. We expect to issue additional instructions after OGC completes its review. Until that time, continue to follow the instructions in section C.

C. What will an adjudicator do if a claimant or representative challenges the constitutionality of the manner in which SSA appoints its ALJs?
    1. Challenge made orally at the hearing level
      If a claimant or representative challenges at a hearing the constitutionality of the manner in which SSA appoints its ALJs, ALJs will only respond that “the hearing decision[/dismissal] will acknowledge that the argument was raised.” Because SSA lacks the authority to finally decide constitutional issues such as these, ALJs will not discuss or make any findings related to the Appointments Clause issue on the record.

      When issuing the hearing decision or dismissal, ALJs will acknowledge that the issue was raised by adding the following language:
          “The claimant[/representative] also raised a challenge to the manner in which I was appointed as an administrative law judge under the Appointments Clause of the Constitution. I do not have the authority to rule on that challenge and do not address it further in this decision[/dismissal].”
    2. Challenge made in writing at the hearing level
      If a claimant or representative challenges in writing the constitutionality of the manner in which SSA appoints its ALJs, ALJs will acknowledge that the issue was raised by adding the following language to the hearing decision or dismissal:

      “The claimant[/representative] also raised a challenge to the manner in which I was appointed as an administrative law judge under the Appointments Clause of the Constitution. I do not have the authority to rule on that challenge and do not address it further in this decision[/dismissal].”

      ALJs will not otherwise discuss or make any findings related to the Appointments Clause issue.
    3. Challenge made at the Appeals Council (AC) level
      As challenges to the constitutionality of the appointment of SSA’s ALJs are outside the purview of the administrative adjudication, the AC will not acknowledge, make findings related to, or otherwise discuss the Appointments Clause issue.

D. How will we process claims in which the Appointments Clause issue is raised?

If a claimant or representative raises an Appointments Clause issue, Office of Hearings Operations (OHO) and Office of Appellate Operations (OAO) staff will flag the case in CPMS and ARPS by adding the case characteristic “LUCI,” which can be found in both systems under the “Other” case characteristic type.

ALJs who receive Appointments Clause objections will notify hearing office management. Hearing office management will either add the LUCI case characteristic in CPMS or delegate to staff to do so.

Once the LUCI case characteristic is added to a CPMS record for an electronic claim(s) file, it will automatically populate if an ARPS record is subsequently created. However, for paper claim(s) files, the LUCI case characteristic must be added manually in both CPMS and ARPS.

All OHO and OAO staff are responsible for ensuring that the LUCI case characteristic is reflected in CPMS and ARPS, respectively, and must add it if it is missing. For example, an OHO decision writer will look for the LUCI case characteristic in CPMS and add the necessary language as stated in sub-subsections C.1. and C.2. Similarly, an OAO analyst will add the LUCI case characteristic in ARPS if it is missing.

Aside from following the instructions provided in subsection C and adding the LUCI case characteristic, all OHO and OAO adjudicators and staff will continue processing claims using current policies and business processes without discussing or making any findings related to the Appointments Clause issue.

OHO adjudicators and staff, please direct all questions to your hearing office management chain. OAO adjudicators and staff, please direct all questions to the Executive Director’s office.


References:

HALLEX I-1-1-52 Hearing on the Charges
HALLEX I-1-1-55 Request for Review Before the Appeals Council
HALLEX I-1-1-60 Reinstatement of a Representative After Suspension or Disqualification
HALLEX I-2-2-1 Issues
HALLEX
I-2-2-10 Notice of Issues
HALLEX I-2-2-20 Objection to the Issues
HALLEX I-2-6-1 Hearings – General
HALLEX I-2-6-76 Arguments by the Claimant or Appointed Representative
HALLEX I-2-8-19 Oral Decisions on the Record (Bench Decisions)
HALLEX I-2-8-20 Instructions to Decision Writers
HALLEX I-2-8-25 Writing the Decision
HALLEX I-2-8-30 Issuing a Disability Decision When a Claim Is Appealed on a Non-Disability Issue
HALLEX I-2-8-45 Case Processing and Management System Case Routing
HALLEX I-3-2-1 Overview – Analyst Actions on Requests for Review
HALLEX I-3-2-24 Handling Information Submitted or Associated in a Claim(s) File About a Person Other Than a Party to the Proceeding
HALLEX I-4-8-25 Office of Appellate Operations Actions When Claimant Files Timely Exceptions

EM 18003 REV - Important Information Regarding Possible Challenges to the Appointment of Administrative Law Judges in SSA’s Administrative Process--UPDATE - 06/25/2018