Thursday, July 23, 2015

Young v. Colvin

In an unpublished memorandum disposition, the Ninth Circuit decided Young v. Colvin on July 21, 2015.  On the last line of the mem-dis, the court writes:

And a hotel housekeeper’s occasional interaction with hotel guests does not amount to more than minimal or superficial contact with the public. See DOT 369.687-018, 1991 WL 673072; DOT 323.687-014, 1991 WL 672783. 

Really?    The DOT does not say that and to make that finding without evidence is shocking.

DOT code 369.687-018 is a folder in the laundry and garment industries.  It is not a hotel housekeeper.

DOT code 323.687-014 is the cleaner, housekeeping occupation.  According to the DOT, the worker must:

Cleans rooms and halls in commercial establishments, such as hotels, restaurants, clubs, beauty parlors, and dormitories, performing any combination of following duties: Sorts, counts, folds, marks, or carries linens. Makes beds. Replenishes supplies, such as drinking glasses and writing supplies. Checks wraps and renders personal assistance to patrons. Moves furniture, hangs drapes, and rolls carpets. Performs other duties as described under CLEANER (any industry) I Master Title. May be designated according to type of establishment cleaned as Beauty Parlor Cleaner (personal ser.); Motel Cleaner (hotel & rest.); or according to area cleaned as Sleeping Room Cleaner (hotel & rest.). 
Personal assistance to patrons -- minimal and superficial, where does the court fathom that concept?  Words have meaning and personal does too.  The dictionary definition:

Full Definition of PERSONAL1
:  of, relating to, or affecting a particular person :  privateindividual <personal ambition><personal financial gain>2
a :  done in person without the intervention of another; also :  proceeding from a single person
b :  carried on between individuals directly <a personal interview>3
:  relating to the person or body4
:  relating to an individual or an individual's character, conduct, motives, or private affairs often in an offensive manner <a personal insult>5
a :  being rational and self-conscious <personal, responsive government is still possible — John Fischer>
b :  having the qualities of a person rather than a thing or abstraction <a personal devil>6
:  of, relating to, or constituting personal property <a personal estate>7
:  denoting grammatical person8
:  intended for private use or use by one person <a personal stereo>

Which of the definitions of personal does the court use in deeming the work of a housekeeping cleaner devoid of more than minimal and superficial?

Sometimes a memorandum disposition is a reaction to bad facts, bad lawyering, or a deep conviction that the claimant will never win.  More often, it is because the case has nothing important to add to a burgeoning load of case law.  Young isn't law of the circuit and a good thing too.  Young is wrong on that last sentence, very wrong.

Saturday, July 18, 2015

Hey Courts -- Apply the Law in Effect at the Time of Decision

Not really sure how a pernicious idea that it just would not be fair to review an ALJ decision based on the new regulations, ruling, POMS, HALLEX, or teletype weaseled its way into the cases -- but it has and it is wrong.  It is indefensibly wrong.  

In Lockwood v. Commissioner, the Ninth Circuit observed as its very first observation that the policy pronouncement interpreting the regulation about the impact of age was not in effect at the time of the ALJ decision.  In Chapo v. Astrue, the Tenth Circuit started a long string of cases for the proposition that the court ought to cite and review the ALJ decision based on the regulations in effect at the time of the ALJ decision.  In Rice v. Barnhart, the Seventh Circuit applied a deleted listing.  

In Howard ex rel. Wolff v. Barnhart and  Garrett ex rel. Moore v. Barnhart, the Ninth and Eighth Circuits conceded to the Commissioner's request to apply the interim final rules to children's disability cases decided under those regulations because of changes in the program instead of the final rules promulgated with a delayed effective date.   That application of the rules in effect at the time of the final decision instead of the rules in effect at the time of the court review had a specific and reasoned request -- to prevent the remand of every childhood disability case that would become pending after the final rules took effect.  So did Flener ex rel. Flener v. Barnhart, the Seventh Circuit just never told the public "why."   But those are different issues -- the Commissioner had a good reason and asked that the new rules not apply to all pending cases.  

 The general rule requires the courts to apply the law in effect at the time of the review -- not the law in effect at the time of the decision under review.  Henderson v. U.S.  It isn't like Henderson forged new ground.  Henderson relied on Thorpe v. Housing Authority of Durham.  The modern doctrine to apply the law in effect at the time of the appeal dates back to the founding of the nation.  United States v. Peggy Schooner.  

The author of the wiki article about Peggy Schooner states that a treaty between the United States and France about ships seized at sea during an undeclared war had retroactive effect.  That implication, suggestion, or statement is just wrong.  The treaty applied to pending cases not yet final.  Retroactive application changes the legal result of matters already final.  Application to all pending matters concerns an evenhanded resolution of all matters that will come before the court once the new legal anchor gets set.  

For Lockwood, the application of a different interpretation of a stable but ambiguous regulation has passed.  But Lockwood did not explain or address why it should not apply the interpretation of the regulation in effect at the time of decision.  And don't fret that Lockwood constitutes law of the circuit -- it doesn't.  Mutual Life Ins. Co. v. Lipp.