Monday, May 2, 2011

Lockwood v. Astrue

My level of angst rose Friday and approaches crescendo this morning.  Under the Supreme Court's docketing procedures, Lockwood got distributed for conference on April 29, 2011.  The Court will post the order list this morning.  The order list for April 25 was 9 pages long of certiorari denied, habeas denied, mandamus denied, rehearing denied, attorney discipline, and a handful of orders in pending cases.  Most other order lists have 2 cases with certiorari granted.  Thousands of cases filed each year, less than 100 get granted and set for oral argument.  The Supremes have a pretty good idea of how many cases it wants to hear next hear and already has a calendar of oral argument days.

The advertised publication time is 10 AM Eastern Time. At 7:05 AM Pacific Time, I am still waiting.

There it is.  Certiorari denied.  Posted the news to my  brethren on a private list.  Truly disappointed for the simple reason that we should be able to trust that what the government says it means.  Maybe I am naive or yearn for a utopia that will never appear.  But when any agency clears away the haze of ambiguity of a regulation, we should demand the right to bank on it.  Litigation ensues when rights and results are unclear.  If we all know the result based on settled law, then litigation turns on factual disputes only.  When the law is not clear or when one side (the federal government) can run away from clarity, then the whole system fails.

It is an old adage for lawyers.  When the facts are one your side, argue the facts.  When the facts are not on your side, argue the law.  When the law is not on your side, confuse the issues.  I tip my hat to the lawyers that represent the Social Security Administration ... you certainly did confuse the issue on this one.

It isn't that there isn't blame to go around.  The lawyers for SSA blame the lawyers for the claimant for not raising the issue or not raising the issue properly.  Perhaps that is permissible in a truly adversarial position but the Social Security Act is different.  It is non adversarial.  Government lawyers are also different.  They have an obligation not only to a particular case but to the public at large.

More on this topic in the months to come.

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