Tuesday, December 17, 2019

Supreme Court Review -- Was There a Case or Controversy?

I tell people that I really don't practice law, I just do administrative law.  The Social Security practice is non-adversarial; hearings last 30 minutes; and even federal court review is labeled "transcript litigation."  We do not take depositions, propound interrogatories, or examine witnesses in open court.  And yet, the practice of administrative law has been intellectually and professionally rewarding.  Today, we look at two Social Security cases decided in the last term with a constitutional question: was there a case or controversy?

The first case is Culbertson v. Berryhill.  This case ended the view of a minority of circuits that attorney fees for federal court under 42 U.S.C. § 406(b) were both capped by the 25% statutory maximum but that ceiling included any and all fees awarded by the agency to attorneys that represented the claimant before the agency.  Culbertson maintained that there was no such unified cap.  Before the district court and the court of appeals, the Commissioner asserted that there was, convincing both courts that Culbertson was wrong.  Culbertson sought certiorari.

The Commissioner argued in the Eleventh Circuit that the district court had decided the issue correctly.  But when the case got to the certiorari stage, the Commissioner changed her mind -- or the Solicitor General changed the government's mind:
Because no party defends the judgment, we appointed Amy Weil to brief and argue this case as amicus curiae in support of the judgment below. 584 U.S. ___, 139 S.Ct. 304, 2042, 202 L.Ed.2d 14 (2018). Amicus Weil has ably discharged her assigned responsibilities.
 If the parties agree, where is the case or controversy?  Isn't the public policy to encourage parties to resolve their disputes and not to ask the court to issue advisory opinions resolving a split in the circuits?  The answer is typically yes but fees under §406(b) are different.  As the Eleventh Circuit said 20 years ago, Congress designated the courts with the responsibility of interfering with the financial particulars of the attorney-client relationship, in parens patriae.  From the Wiki:
Parens patriae is Latin for "parent of the nation" (lit., "parent of the fatherland"). In law, it refers to the public policy power of the state to intervene against an abusive or negligent parent, legal guardian, or informal caretaker, and to act as the parent of any child or individual who is in need of protection.
The controversy in Culbertson was between the court and Culbertson, not the agency and Culbertson.  The capitulation in response to the petition for certiorari that Culbertson had correctly interpreted the fee statute did not relieve the court of discharging its parens patriae obligation.

The second case is Smith v. Berryhill.  This case ended the problem of the Appeals Council losing the request for review, dismissing the request for review as untimely, and then barring an evidentiary inquiry in court whether the claimant had timely filed a request for review.

Undeterred by the Commissioner's view of the review process, Smith filed in federal court.  The Commissioner moved to dismiss.  The district court agreed with the Commissioner and dismissed the suit for want of jurisdiction.  Smith appealed.  The Sixth Circuit affirmed.  But when the case got to the certiorari stage, the Commissioner changed her mind -- or the Solicitor General changed the government's mind:
We granted certiorari to resolve a conflict among the Courts of Appeals. 586 U.S. ___, 139 S.Ct. 451, 202 L.Ed.2d 345 (2018).[6] Because the Government agrees with Smith that the Appeals Council's dismissal meets § 405(g)'s terms, we appointed Deepak Gupta as amicus curiae to defend the judgment below. 586 U.S. ___, 139 S.Ct. 451, 202 L.Ed.2d 345 (2018). He has ably discharged his duties.
The footnote surveyed the conflict in the circuits: seven courts no jurisdiction and two jurisdiction existed to hear the claim.  Smith cites to Mathews for the settled proposition that jurisdiction based on exhaustion of administrative remedies is waivable.  The controversy is resolved as to the motion to dismiss.  The Commissioner should not have filed the motion to dismiss.  Despite the admission that the agency erred, the Supreme Court issues an opinion to resolve a conflict among the circuits to publicly affirm that Commissioner changed her mind.  There was no case or controversy.  The Appeals Council issues a new order finding that Smith did not file a request for review in a timely manner and inviting review by the district court.  The case starts over rather than using/wasting the Supreme Court's time to fix that which the executive branch acknowledged it should not have done.

Perhaps erasing seven obnoxious sets of circuit precedent depriving claimants of review is laudable.  But that ignores the cost to scarce resources and the constitutional requirement of a case or controversy.  The better solution would have been for the Supreme Court to issue an order vacating the decision of Sixth Circuit with directions to remand to the district court to hear the exhaustion question on the merits.

Two cases involving the Commissioner's capitulation on the issue before the Supreme Court.  Not a good track record for agency attorneys: that they have litigated issues contrary to the correct interpretation of the statute.  In one, the Supreme Court need to proceed because of role of the courts in protecting claimants from their own attorneys; in the other, the Supreme Court to issue an advisory opinion without telling us why it infringed on the plain meaning of case or controversy.



Lawrence Rohlfing, Supreme Court Review -- Was There a Case or Controversy?, California Social Security Attorney (December 17, 2019),

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