Mr. Chairman and Members of the Subcommittee:
My name is John H. Pickering. I chair the American Bar Association's Senior Lawyers Division, and serve as Commissioner Emeritus of the ABA Commission on Legal Problems of the Elderly, which I also chaired for a number of years. I appreciate the opportunity to discuss with you this morning the American Bar Association's positions with regard to the issues sought to be addressed by H.R. 1544, "The Federal Agency Compliance Act," a bill to prevent federal agencies from pursuing policies of unjustifiable nonacquiescence in, and relitigation of, federal judicial precedents. As the representative of the legal profession in the United States, the American Bar Association is particularly concerned with equal access to the justice system for those members of our society who are generally least able to protect their own rights -- low-income persons, individuals with disabilities and older people -- and we believe that federal agency compliance with federal court precedent is an integral component of that system.
Pursuant to the U.S. House of Representatives "Truth in Testimony" rule, non-governmental witnesses appearing before the House are required to include as part of their written testimony both a curriculum vitae and a disclosure by source and amount of federal grants and contracts which are relevant to the subject matter of the hearing received by them and by any organization represented by them in the current and preceding two fiscal years. The ABA has not received any grants relevant to this hearing in the current and preceding two fiscal years. Please find attached my curriculum vitae.
Over a decade ago, we joined with the Administrative Conference of the United States (ACUS) to sponsor a national symposium on the Social Security Administrative Appeals process. Since that time, the Association has drawn upon the considerable expertise of a membership with backgrounds as claimant representatives, administrative law judges, academicians and agency staff, to develop a wide ranging body of recommendations that emphasize clarity in communications with and due process protections for claimants, and that urge the application of appropriate, consistent legal standards at all stages of the disability adjudication process. In 1986, in an amicus curiae brief in the landmark U.S. Supreme Court case, Bowen v. City of New York, the Association argued successfully that the Social Security Administration should reopen the cases of thousands of mentally disabled claimants who were denied disability benefits because they failed to meet sub rosa requirements and appeal deadlines. Brief for the American Bar Association, Amicus Curiae, in Support of the Respondents, Bowen v. City of New York, 476 U.S. 467 (1986). We understand that Social Security cases have become a significant factor in the caseload of the federal courts. SSA could improve this situation at the front-end of the process, by providing individuals applying for benefits with a clear statement of applicable eligibility requirements, the claimant's responsibilities, a description of the administrative steps in the process, an explanation of relevant medical and vocational evidence and notice of the availability of legal representation. However, it is our opinion that much of this burden could be alleviated if the agency would comply with federal court precedent, thereby avoiding costly and time consuming relitigation of similar issues of law.
The American Bar Association has consistently condemned the Social Security Administration's practice of nonacquiescence. In 1985, the ABA House of Delegates urged the SSA to cease its policy of refusing to apply to claims, filed within a circuit, interpretations of the Social Security Act and its regulations by the U.S. Court of Appeals within that circuit (intracircuit nonacquiescence). The Association called for legislation mandating SSA to "observe within each circuit the decisions of the Court of Appeals within that Circuit, subject to seeking review in the United States Supreme Court." Following our adoption of this policy, the SSA made some welcome changes in its practices, but did not go far enough, and still continued to carve out exceptions. On January 1, 1990, we presented our position on this issue to the Federal Courts Study Committee. In a follow-up memorandum dated January 17, 1989, prepared at the request of Committee chair, the Hon. Joseph E. Weis, I expressed the Association's ongoing disappointment that the agency continued to flout the rule of law that government agencies are bound by judicial decisions, and that the agency's policy has the ultimate effect of denying claimants fair and timely resolution of their claims. One month later, at the request of the National Conference of Administrative Law Judges, the American Bar Association House of Delegates adopted policy urging the enactment of federal legislation directing SSA to cease its nonacquiescence policy, with the recommendation that such legislation incorporate the following principles to address conflicting decisions by two circuits courts of appeals:
A. Where two Circuit Courts of Appeals have decided the same issue of law adversely to the
position of the Social Security Administration, regardless of whether another Circuit Court
has ruled favorably, then the Secretary of Health and Human Services shall recommend to the
Solicitor General of the United States that the last Circuit Court decision be appealed to the
United States Supreme Court, and, if the Solicitor General refuses to appeal or if certiorari is
sought and denied by the United States Supreme Court, then that rule as enunciated by the
two Circuit Courts ruling adversely shall be followed by the Social Security Administration in
B. Where a dispute arises as to whether an issue is the "same," a petition for mandamus also
will lie in the second circuit issuing an adverse decision; and
C. Where mandamus is granted, imposition of liquidated damages up to $50,000 may be
imposed as well as imposition of court costs, expert witness fees and attorney fees.
We were extremely gratified when we learned that the Study Committee agreed with our position that legislation is necessary to halt the agency's non-acquiescence policy. In its 1990 Report, the Study Committee recommended that Congress prohibit nonacquiescence by "amending the Social Security Act ... to require the Secretary of Health and Human Services, in all administrative proceedings, to abide by the holding of the court of appeals in the circuit in which a claim for benefits under the Act is filed.... [except in cases which] the Solicitor General has determined [are] appropriate to use as a test of the existing law." (Copies of the 1985 and 1990 ABA policies, and the January 17 follow-up statement and the Recommendation and analysis of the Federal Courts Study Committee, are attached.)
While we appreciate the steps that the agency has taken since 1990 in recognizing the authority of decisions of the circuit in selected cases, notably on issues such as widow's disability and the evaluation of pain, it is our position that the agency's actions are still unacceptable. The agency continues to hold itself outside the rules on which our system of justice is based. It claims to be bound only by federal district and appellate court decisions in a particular circuit as they affect the particular litigant in the specific case under consideration. Beyond that, the agency considers itself bound only by the Social Security Act, agency regulations and rulings, and decisions of the United States Supreme Court. It reviews decisions of the Court of Appeals within a particular circuit to determine whether, in the opinion of the agency, they are "correctly decided." If, in the opinion of the agency, the case is correctly decided, it issues a formal ruling acquiescing to the decision in that circuit. If, in the opinion of the agency, the case is incorrectly decided, the ruling will not be followed. Until an acquiescence ruling is issued, agency decision makers in the affected circuit are directed to follow agency policy. As recently as January of this year, the agency instructed its administrative law judges that they must follow agency regulations and guidelines, without regard to the law in the circuit to which the claim in question would eventually be appealed. The agency also reserves the right to relitigate issues in a circuit, even though it has issued an acquiescence ruling. Only in the Second Circuit, as a result of a settlement reached in Stieberger v. Sullivan, 738 F. Supp. 716 (S.D.N.Y. 1990) after years of wrangling, has the agency agreed to follow decisions of the circuit court. SSA has not chosen to follow the procedures we recommended in 1990 to resolve intercircuit disputes on the same issue of law.
The agency contends that to acquiesce in each and every case would be untenable, leading to a requirement that the agency change its policies each time a federal court awarded benefits to a particularly sympathetic claimant. This raises the image of a feather being tossed in the wind. The Social Security Administration certainly is no feather, and we most certainly do not ask the agency to change its policies to comport with each circuit court decision, particularly not those based on issues of fact. Rather, we argue that the Social Security Administration, as an adjudicatory body that is an integral part of our nation's system of justice, should follow the legal precedent set by the federal courts, or challenge those decisions through the judicial system.
Nonacquiescence allows a federal agency to act without check until either the Congress or the Supreme Court intervenes -- flying in the face of the reliance on judicial precedent that our system of justice presupposes and undermining the integrity and efficiency of the appeals process while guaranteeing the claimant due process. Claimants, who are frequently indigent, should not be forced to relitigate legal issues on which the agency has not prevailed but refuses to follow or appeal. Judge Learned Hand once said that if democracy is to be preserved, there must be one commandment: "Thou shalt not ration justice." By continuing to pursue its policy of nonacquiescence, the Social Security Administration is limiting access to the justice system, and thereby rationing justice, for: 1) the claimant who must pursue lengthy appeals to obtain a decision on an issue of law that could have been resolved at the agency level; 2) claimants whose cases are delayed because the agency's resources are spent on duplicative efforts; and 3) claimants who may be denied timely access to the federal court system because the court is forced to consider anew, issues of law that it has already decided.
We commend the Subcommittee for hearing these important issues, and appreciate the
opportunity to submit this testimony. We look forward to working with the Subcommittee
and with the Social Security Administration on these issues in the future.