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.