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PROPOSAL FOR A UNITED STATES SOCIAL SECURITY COURT
                      by Robin J. Arzt for ABA Administrative Law Section

[This position paper is presented in my individual capacity. My position as an ALJ with
the Social Security Administration (“SSA”) is stated in this position paper for
identification purposes only. This position paper was written in my private capacity and
without the use of federal government resources or federal work time. No official
support or endorsement by the SSA or the United States is or should be inferred. The
views expressed in this letter are mine and do not necessarily represent the views of the
SSA or the United States.]

Table of Contents                                                                  Page

I.     IS IT TIME FOR A SOCIAL SECURITY COURT?                                       1

       A.      CURRENT ABA POLICY                                                    1

       B.      ARGUMENTS AGAINST AND FOR A
               SOCIAL SECURITY COURT                                                 1

II.    NECESSARY ATTRIBUTES OF A
       SOCIAL SECURITY COURT                                                       17

       A.      COURT STRUCTURE                                                     18

       B.      JURISDICTION AND APPELLATE REVIEW                                   28

       C.      STATUS AS A COURT OF LAW OF THE
               JUDICIAL BRANCH OR EXECUTIVE BRANCH                                 34

       D.      JUDGES PAY AND BENEFITS                                             43
                                          I.

IS IT TIME FOR A SOCIAL SECURITY COURT?

        A.       CURRENT ABA POLICY
Twenty years ago, the ABA House of Delegates adopted a resolution in 1986 that
opposed “the enactment of H.R. 4647, H.R. 4419 and similar legislation to create an
Article I Social Security Court to hear appeals from final decisions of the Social Security
Administration” as part of a resolution that made detailed recommendations regarding the
Social Security Administration (“SSA”) administrative disability adjudication process.1
Subsequent ABA House of Delegates resolutions adopted in 1991 and 1995 that made
additional detailed recommendations regarding the SSA administrative disability
adjudication process did not mention the Social Security Court concept.2 The ABA has
not reexamined whether there should be an Article I Social Security Court since 1986.


        B.       ARGUMENTS AGAINST AND FOR A
                 SOCIAL SECURITY COURT
The 1986 resolution that opposed the creation of an Article I Social Security Court (“the
Resolution”) was supported by a joint report by the ABA Commission on Legal Problems
of the Elderly and ABA Commission on the Mentally Disabled.3 A primary proponent of
the Resolution, John H. Pickering, the Chair of the ABA Commission on Legal Problems
of the Elderly, summarized the report at the 1986 ABA Annual Meeting as stating the
following reasons for opposing such a court:

        [A]lthough the Social Security system was the biggest adjudicatory system in the
        world and did have problems, the creation of a new Article I court was not
        appropriate at this time because: the work load was decreasing due to new
        processing being instituted; uniformity of decision would not occur because
        constitutional challenges would still be allowed; challenges to the legality of
        regulations would still be reviewed in the district court, and judicial review was
        too important to be put in the hands of a specialized court.4

Because most of the arguments against and for the formation of an Article I Social
Security Court have changed surprisingly little over the last 20 years, each of the
rationales will be examined in this section in the context of how they are stated in the

1
  Am. Bar Ass’n House of Delegates Resolution regarding SSA disability process policy (adopted Aug.
1986); 1986 Am. Bar Ass’n Annual Meeting Report, p. 50.
2
  Am. Bar Ass’n House of Delegates Resolutions regarding SSA disability process policy (adopted Aug.
1991 and Aug. 1995).
3
  Report No. 4 of the ABA Commission on Legal Problems of the Elderly and ABA Commission on the
Mentally Disabled, 1986 Am. Bar Ass’n Annual Meeting Report, 821-828 (Aug. 1986) [hereinafter ABA
Report].
4
  1986 Am. Bar Ass’n Annual Meeting Report, p. 50.
ABA Report in support of the Resolution to determine whether they are valid and, if so,
have facts and circumstances changed to either eliminate the reason or change the side
that the reason supports regarding forming a specialized court.

A primary reason upon which opposition to a specialized Social Security Court rested
was that the exponential rise in the number of Social Security Court cases during the
early and mid-1980s did not justify the creation of a Social Security Court to relieve the
district courts of the growing caseload burden, as proponents of such a court asserted.
The number of district court cases had risen from 7,800 in 1981 to about 27,000 in 1985.5
The ABA report stated three rationales for why the high caseload did not warrant a Social
Security Court: (1) the caseload was expected to decline, (2) modifications of the SSA’s
administrative adjudication process for disability claims that improve decision accuracy
is a more incremental and cost effective way to reduce the number of court appeals than
to divert the cases to a new court, and (3) even if the Social Security caseload stays high,
it is not a burden for the district courts because an individual Social Security case uses
less district court resources than other cases. Although stated as a separate rationale
against the need of a specialized court, part of whether Social Security cases burden the
district courts is raised by the ABA Report’s statement that Social Security Court
proponents overestimate the need for technical expertise to assess medical evidence and
determine whether there is substantial evidence in the record to support SSA’s findings
on the issue of disability.6 Each of these rationales is stated and then examined in more
detail below.

First, the ABA Report stated that the number of Social Security cases filed in the district
courts was expected to decline for two reasons. The marked rise in district court appeals
filed from 7,800 in fiscal year 1981 to 27,000 in 1985 because of the early and mid-1980s
Reagan era abuses of the continuing disability review process that resulted in the
cessation of benefits for nearly one-half million claimants was viewed as a temporary
phenomenon that was corrected in 1984 by legislation that enacted comprehensive
changes in the Social Security disability administrative adjudication process. The
legislation was expected to result in a significant decline of court filings, once the
changes went into effect. In addition, the SSA largely has abandoned its past practice of
non-acquiescence to certain Circuit Court decisions that SSA felt interfered with the
uniform administration of its programs across the nation, the issues of which SSA used to
continue to re-litigate in district courts within the affected circuit.7

In the short term, the ABA report was correct that the number of Social Security case
district court filings would fall but, in the long term, the number of district court filings
per year inexorably has been climbing and will continue to climb with the growth of the
SSA’s administrative caseload. It is true that the SSA has not engaged in non-
acquiescence in many years and the spike in district court cases in the immediate wake of
the Reagan era abuses of the continuing disability review process has long since resolved.
In fact, the number of Social Security case district court appeals filed briefly did return to

5
  ABA Report, supra note 3, at 822.
6
  Id. at 822-825.
7
  Id.


                                              2
pre-Reagan era levels, such as in fiscal year 1990, when only 6,895 cases were filed.8
However, by fiscal year 1993, the case filings rose to 11,747.9 In 1995 and 1996, the
filings were about 9,300 per year.10 Since then, the filings have stayed in the five digits
and have risen to between 13,600 to 14,500 per year during 1997-1999 and 15,500 to
18,300 per year during 2000-2005.11

The rise in district court cases is directly related to the overall growth in the Social
Security administrative caseload, which is not expected to abate any time soon. The
number of SSA ALJ decisions per year has increased dramatically in recent years,
culminating in 605,000 cases decided fiscal year 2005 (2004: 561,500, 2003: 571,900,
2002: 532,100).12 In addition, there were over 708,000 SSA cases pending an ALJ
hearing as of the end of fiscal year 2005,13 which is a marked rise from the nearly
400,000 cases that were pending as of the end of fiscal year 2001 despite record breaking
ALJ productivity increases in recent years.14 The number of SSA cases pending an ALJ
hearing has continued to rise to over 727,000 as of April 2006 and SSA expects the
number to reach about 767,000 in fiscal year 2007.15 During fiscal year 2005, the SSA
also processed over 1.5 million continuing disability review cases, the appeals from some
of which are working their way through the appellate system.16 During fiscal year 2007,
SSA expects to process over 575,000 ALJ decisions and 1.6 million continuing disability
review cases.17 There are about 90,000 claimant appeals to the Appeals Council per
year18 and the SSA Appeals Council disposed of over 115,000, 100,000, 97,700, and

8
  Judicial Facts and Figures at Table 4.4, http://www.uscourts.gov/judicialfactsfigures/Table404.pdf.
9
  Judicial Business of the United States Courts: 1997 Annual Reports of the Director at Table C-2A (1997),
http://www.uscourts.gov/judicial_business/c2asep97.pdf.
10
   Id. at Table C-2A.
11
   Judicial Business of the United States Courts: 2005 Annual Reports of the Director at Table C-2A
(2005), http://www.uscourts.gov/judbus2005/appendices/c2a.pdf; Judicial Business of the United States
Courts: 2000 Annual Reports of the Director at Table C-2A (2000),
http://www.uscourts.gov/judbus2000/appendices/c02asep00.pdf. The peak of 18,300 filings in fiscal year
2002 was attributed to the SSA processing its backlog of cases more quickly. Judicial Facts and Figures at
Table 4.4, n. 5, http://www.uscourts.gov/judicialfactsfigures/Table404.pdf.
12
   A. Jacy Thurmond, Jr., Associate Commissioner of SSA Office of Hearings and Appeals (“OHA”), OHA
FY 2005 Annual Report at 5 (2005); A. Jacy Thurmond, Jr., Associate Commissioner of SSA OHA, OHA
FY 2004 Annual Report at 5 (2004); A. Jacy Thurmond, Jr., Associate Commissioner of SSA OHA, OHA
FY 2003 Annual Report at 5 (2003); A. Jacy Thurmond, Jr., Associate Commissioner of SSA OHA, OHA
FY 2002 Annual Report at 5 (2002).
13
   SSA’s Performance and Accountability Report for Fiscal Year 2005 at 17 (a report to Congress),
http://www.socialsecurity.gov/finance/2005/Key_Performance.pdf.
14
   Hearing on the Administrative Challenges Facing the SSA before the Senate Finance Committee, 109th
Cong. (2nd Sess., March 14, 2006) (opening statement of Sen. Max Baucus, Chair).
15
   Hearing on the SSA’s Improved Disability Determination Process before the House Subcommittee on
Social Security of the Committee on Ways and Means, 109th Cong. (2nd Sess., June 15, 2006) (hearing
advisory of Cong. Jim McCrery, Chair).
16
   Id. at 18.
17
   Hearing on the SSA’s Service Delivery Challenges before the House Subcommittee on Social Security of
the Committee on Ways and Means, 109th Cong. (2nd Sess., May 11, 2006) (statement of Hon. Jo Anne B.
Barnhart, SSA Commissioner). The ALJ disposition rate is expected to be slightly lower than in 2005
because of the transfer of the Medicare cases to the Department of Health and Human Services.
18
   Memorandum from A. Jacy Thurmond, Jr., Associate Commissioner of SSA OHA, Thank You, OHA -
INFORMATION (October 3, 2005).


                                                    3
94,000 cases respectively during fiscal years 2003, 2004 and 2005, which includes a
substantial reduction in backlog in 2003 and 2004.19 During fiscal years 2003, 2004 and
2005, the District Courts respectively received about 17,100, 15,900, and 15,500 Social
Security Act benefits appeals from SSA Appeals Council decisions.20

In short, the reservoir of Social Security administrative cases from which the district
court filings come is larger than it ever has been and is growing.

In addition, the district court filings have increased because the effect of the case volume
growth apparently has more than offset the gains in improved administrative decision
accuracy from SSA’s several significant process changes since the time of the ABA
Report, including the process unification changes in the mid-1990s. It is reasonable to
infer that there have been administrative decision accuracy gains from the SSA’s process
changes, since the district courts have reversed the SSA’s decisions in only about 6% of
the cases filed during all of the years from 1995 though 2004 and affirmed between about
35% to 57% of the SSA’s decisions during those years.21

Accordingly, contrary to the expectations of the drafters of the ABA Report, the
district court caseload has been rising significantly since 1993 and modifications of
the SSA’s administrative adjudication process for disability claims that have
improved administrative decision accuracy over the last 20 years have not resulted
in a reduction of the number of district court appeals. These facts militate in
support of forming a Social Security Court.

There is another potential source for a significant increase of Social Security Court filings
in the district courts over the next several years, which also relates to the position by
opponents of a specialized court that modifications of the SSA’s administrative
adjudication process for disability claims that improve decision accuracy is a more
incremental and cost effective way to reduce the number of court appeals.

The SSA’s administrative disability claim process is about to undergo yet another set of
comprehensive changes that are extensive and affect all levels in the administrative
adjudication process. The SSA’s final regulations regarding its administrative review
process for adjudicating initial disability claims (1) replaces the Appeals Council with a
Decision Review Board (the “Board”) that will include ALJs and Administrative Appeals
Judges (“AAJs”) as decision makers, and (2) eliminates a claimant’s right to request
administrative review of an adverse disability benefits claim decision by an ALJ under
Title II and XVI of the Social Security Act: “You may not appeal an [ALJ’s] decision to
the Board.”22 Only at the SSA’s election may the Board review an ALJ decision.23 The
ALJ’s decision becomes the SSA Commissioner’s final decision, unless the Board issues
19
   OHA FY 2005Annual Report at 7; OHA FY 2004 Annual Report at 7; OHA FY 2003 Annual Report at 8;
OHA FY 2002 Annual Report at 6.
20
   Judicial Business, 2005 Report, supra note 11, at Table C-2A.
21
   Social Security Advisory Board (“SSAB”), Disability Decision Making: Data and Materials 89, Chart
67 (May 2006).
22
   20 C.F.R. § 405.405(b). See also, 20 C.F.R. § 405.1(b)(4).
23
   20 C.F.R. §§ 405.405(b), 405.410. See also, 20 C.F.R. § 405.1(b)(4).


                                                 4
a decision.24 A claimant has the right to appeal an adverse final administrative decision
to the district court, including an individual ALJ’s decision that is not reviewed by the
Board.25

Recent Congressional testimony on behalf of the Judicial Conference of the United States
(1) stated the Judicial Conference’s opposition to “the elimination of a claimant’s right to
request review of an administrative law judge’s adverse decision by the Appeals Council,
or another administrative reviewing unit with comparable authority, prior to seeking
relief in federal district court,” and (2) cogently explained the need for a specialized
administrative tribunal to which a Social Security disability benefits claimant can appeal
an ALJ’s decision in the context of the recent adverse experience of skyrocketing
numbers of immigration case appeals to the courts since the “streamlining” of the Board
of Immigration Appeals decision making procedures.26


24
   20 C.F.R. §§ 405.372, 405.405(b). See also, 20 C.F.R. § 405.1(b)(3)-(4).
25
   20 C.F.R. §§ 405.405(b), 405.501. See also, 20 C.F.R. § 405.1(b)(5).
26
   The Judicial Conference testimony stated as follows:

        At its March 2005 session, the Judicial Conference of the United States, the policymaking body
        for the federal judiciary, determined to “support efforts to improve the efficiency and effectiveness
        of the process by which the Social Security Administration considers Disability Insurance and
        Supplemental Security Income claims, but oppose the elimination of a claimant’s right to request
        review of an administrative law judge’s adverse decision by the Appeals Council, or another
        administrative reviewing unit with comparable authority, prior to seeking relief in federal district
        court.” Report of the Proceedings of the Judicial Conference of the United States, March 2005,
        pp. 18-19….

        We recognize that SSA has stated that the Appeals Council adds processing time, that it generally
        supports the ALJ decision, and that it fails to provide meaningful guidance to ALJs when it
        disagrees. The judiciary, however, believes that the proposed acceleration of district court review
        of disability claim denials may result in more costs and further delays for claimants because it
        merely shifts the time for considering such claims from the administrative process to the courts. It
        could also greatly expand the number of appeals to the federal courts.

        Based on information provided by SSA, the ability of claimants to request review by the Appeals
        Council appears to provide a helpful screening function today. Between October 2003 and
        September 2004 (FY 2004), SSA reports that the Appeals Council received 92,540 requests for
        review. Information previously received from SSA suggested that 2% of claims annually are
        allowed outright by the Appeals Council and 25% are remanded to an ALJ (which often results in
        allowances to claimants). Thus, the right to request administrative appellate review also appears
        to result in an award of benefits to a significant number of claimants, without the need for further
        review by the federal courts.

        The Administrative Office of the U.S. Courts reports that during FY 2004 there were 14,944
        actions filed in the U.S. district courts seeking judicial review of Disability Insurance and
        Supplemental Security Income claims following a final decision of the Appeals Council. This
        amount is a relatively modest percentage of the 92,540 requests for review presented to the
        Appeals Council. While the judiciary recognizes that several factors might explain why the
        remainder of the claimants choose [sic] not to seek review in federal court, the existence of a right
        to seek administrative appellate review appears to result in a large majority of claimants not
        seeking judicial review following receipt of the Appeals Council’s final decision.



                                                     5
Without a claimant’s right to appeal an adverse ALJ decision to the SSA’s newly created
Board, there is a reasonable concern that the District Courts will be inundated with
appeals from the individual ALJ decisions. The SSA is testing the new regulations in
only the Boston region first for at least one year, and thereafter will implement the
regulations region by region, so that SSA can modify the regulations before nationwide
implementation based on any adverse experience.27 But during the test in the first region,
the Board will review all of the ALJ decisions, which doubtless will not be possible once
there is nationwide implementation, and review of all ALJ decisions is not contemplated
in the regulations.28 Even a relatively small additional portion of cases from the SSA’s
final administrative step under the imminent new process would be an additional burden
for the district courts. Since the SSA is about to phase out having a specialized
administrative tribunal to which a Social Security disability benefits claimant can
appeal an ALJ’s decision, this is yet another factor that supports creating a
specialized court to handle the expected increased caseload in the stead of the
district courts.

Finally, the ABA Report also stated that, even if the numbers of Social Security case
appeals stays large, it is alright and desirable for the district courts to keep the cases
because the total time and resources devoted by the district courts to a Social Security

        The Judicial Conference believes that preserving the right to request review before an
        administrative appellate body should continue to be a precondition to federal judicial
        review. Notwithstanding SSA’s position that the proposed changes to the disability claims
        process will reduce the number of claimants who are dissatisfied with the agency’s decision,
        substituting immediate access to the district courts prior to the right to request final administrative
        appellate review has significant caseload ramifications for the federal courts. [fnote 3 text] A
        possible analogy is the judiciary’s experience after the Department of Justice implemented new
        decision-making procedures for the Board of Immigration Appeals, which serves as the final
        review step for administrative consideration of alien removal and deportation cases. These
        “streamlining” efforts included allowing certain decisions to be made without opinions and
        permitting summary dismissals. As a result of these efforts, immigration appeals increased
        nationwide by 232% between 2001 and 2004 (for 12-month periods ending June 30). The Second
        and Ninth Circuit Courts of Appeals saw immigration appeals increase during this period by
        1,396% and 401%, respectively.

        The Appeals Council and the proposed Board are specialized tribunals dedicated to reviewing ALJ
        decisions. The district courts are no less dedicated, but they have diverse responsibilities that
        make them less suitable for initially reviewing the current 90,000 disability claims of which
        approximately 75,000 are acted on by the Appeals Council without any federal judicial
        involvement. Therefore, the federal judiciary would urge that SSA revise the proposed regulations
        to preserve the present right of claimants to request review of an ALJ decision by an
        administrative reviewing entity.

Joint Hearing on the Commissioner of Social Security’s Proposed Improvements to the Disability
Determination Process before the House Subcommittees on Human Resources and Social Security of the
Committee on Ways and Means, 109th Cong. (1st Sess., September 27, 2005) (statement of Hon. Howard
D. McKibben, Chair, Judicial Conference Committee, Federal-State Jurisdiction, Administrative Office of
the U.S. Courts).
27
   SSA Administrative Review Process for Adjudicating Initial Disability Claims, final rule,
71 Fed. Reg. 16428 (March 31, 2006).
28
   20 C.F.R. § 405.410.


                                                      6
case is less than for other cases, since (1) the record on appeal is reviewed without a trial
and often without oral argument, and (2) “in many, if not most jurisdictions, Social
Security appeals are initially considered by a Magistrate pursuant to an order of the
Court.”29 “[M]agistrates…hear the bulk of Social Security appeals….”30 In addition,
“the federal courts issue far more remands [to SSA] than reversals in SSA cases. Thus,
the need for technical expertise is overestimated.”31 A second reason that is stated in the
ABA Report to keep the Social Security cases in the district courts is the desirability of
Article III judge independence.32

Essentially, the argument against a specialized court is that the Social Security caseload,
no matter how large, is not a burden to the district courts and also is necessary for high
quality due process for the claimants. The general tenure of the ABA Report in this
regard is that transferring the Social Security subject matter jurisdiction from Article III
judges to Article I judges is a diminishment of due process for Social Security claimants,
the essence of which is in the Chair’s comment quoted above that “judicial review was
too important to be put in the hands of a specialized court.”

Those who oppose a Social Security Court believe that retaining district court judicial
review will keep local decisional generalists in the appeals chain who are sensitive to due
process violations and will assure due process for the claimants. Social Security
claimants have come to rely on the availability of district court judicial review, which
always has been a part of the due process for Social Security cases. Therefore, taking it
away is perceived by the claimants and their advocacy groups as a diminishment in due
process. In the past, the claimants’ advocacy groups have spoken forcefully against
eliminating district court judicial review as a reduction in the claimants’ access to due
process. High quality service and due process for the claimants is seen as requiring the
availability of locally accessible Article III judicial review.

However, since the Resolution was adopted by the ABA, well-reasoned and substantial
opinions by policy makers and advisors relevant to the federal courts and Social Security
disability adjudication process have been formed in favor of the creation of an Article I
Social Security Court:

The Judicial Conference of the United States, the principal policy making body for
the United States Courts, recommends in its 1995 Long Range Plan for the Federal
Courts that Article I courts be formed for federal benefit cases specifically to
address large case volumes and the importance of initial judicial review in a single
court to promote uniformity of decision making for national programs:

        Where constitutionally permissible, Congress should be encouraged to assign to
        administrative agencies or Article I courts the initial responsibility for
        adjudicating those categories of federal benefit or regulatory cases that typically

29
   ABA Report, supra note 3, at 823.
30
   Id. at 825.
31
   Id.
32
   Id. at 823.


                                              7
        involve intensive fact-finding….This approach is desirable in subject areas where
        a consistently large volume of cases is expected and initial consideration in a
        single forum is important to the uniformity of program administration. It has been
        utilized in a variety of contexts for many years (citing the Court of Appeals for
        Veterans Claims (“Veterans Court”), among others).33

The Social Security Advisory Board (“SSAB”), which was created by Congress in
1994 to advise the SSA Commissioner on policies related to the Social Security
programs,34 also supports the formation of a Social Security Court. The SSAB’s
support for a Social Security Court to replace the district court step was most recently
reiterated in the SSAB’s October 2005 comments on the SSA Commissioner's then
proposed disability adjudication process regulations: “[T]the Board has previously urged
consideration of a separate Social Security Court that could provide more expeditious
review of disability appeals, eliminate the impact of such cases on the District Court
workloads, and produce more uniform application of disability policy throughout the
Nation.”35

The Federal Courts Study Committee, composed of 15 federal judges, Members of
Congress, and prominent attorneys, studied the entire federal judiciary in 1990. The
Federal Courts Study Committee recommended formation of an Article I court for Social
Security claims because (1) “[t]he principal issues in most Social Security disability cases
are factual and technical. Thus it is best to concentrate adjudicative resources at the
administrative level and create a new appellate court that will attract competent
specialists in disability law,” and (2) “will provide a more thorough and expert
examination of facts than federal district court[s] can provide, given the other demands
on their time.”36

Regarding the argument that the district court review is essential to afford a high
quality of due process and service for the typical Social Security claimant, the facts
show that the Social Security cases are an increasing burden to the district courts
and that the district court judges not only view these cases as a burden, they
perforce treat them as a burden. This works to the detriment of many claimants
receiving an opportunity for an oral argument before a judge, a timely decision, or a
decision on the merits from a district court judge, rather than a remand back to
SSA or disposition by an Article I Magistrate. When claimants do receive decisions
on the merits from the district courts, the decision is six to 9.5 times more likely to
be an affirmation than a reversal and grant of benefits.

33
   Judicial Conference of the United States, Long Range Plan for the Federal Courts 34 (December 1995),
http://www.uscourts.gov/lrp/CVRPGTOC.HTM.
34
   42 U.S.C. § 903.
35
   SSAB, Comments of the Social Security Advisory Board on [the SSA’s] Proposed Regulations to
Restructure the Disability Adjudication Process 8 (October 2005) [hereinafter “SSAB Comments”],
http://www.ssab.gov/documents/BoardComments.pdf.
36
   Paul Verkuil and Jeffrey Lubbers, Alternative Approaches to Judicial Review of Social Security
Disability Cases: A Report to the Social Security Advisory Board 23-24 (March 2002),
http://www.ssab.gov/Publications/Disability/VerkuilLubbers.pdf, quoting, Report of the Federal Courts
Study Committee 55-56 (Apr. 2, 1990).


                                                   8
First, that Social Security cases are a large and growing burden to the district court judges
is shown by the statistics of both the increasing absolute numbers of Social Security cases
over the years, which are discussed above, and their increasing proportion of the district
courts’ workload. Not only have the absolute numbers of Social Security cases filed in
the district courts grown, but they have nearly doubled as a percentage of the cases that
the district courts receive from 3.18% in 1990 to 6.1% in 2000 and 2005, thereby nearly
doubling their impact relative to the district courts’ other caseloads.37

It is not necessary to speculate whether the district court judges feel burdened by Social
Security cases, since they have said so. Part of what persuaded the Federal Courts Study
Committee to recommend a specialized court for Social Security cases “was that
complaints received from federal judges ‘were virtually unanimous in mentioning Social
Security cases. Judges apparently find these cases burdensome, but feel that their efforts
contribute little to improving administration in this area.’”38

Second, the time and attention that district court judges have afforded to Social Security
cases has dwindled. The district courts do not hear oral argument on most Social
Security cases, have longer disposition times for Social Security cases compared to the
total civil case docket, remand the cases back to SSA on a wholesale basis, and have their
Magistrates hear many of the cases. Remands and affirmations of the SSA’s denials of
benefits account for 94% of the district court dispositions of Social Security cases since
1995.

As the opponents to the Resolution noted, many Social Security cases are decided
without oral argument. Unfortunately, it is not possible to quantify how many of the
Social Security cases are orally argued before the district courts. The Administrative
Office of the U.S. Courts does not collect and compile data on how many dispositive
motions that are made before the pretrial stage, such as those that resolve nearly all Social
Security cases, have oral arguments.39 However, anecdotal evidence suggests that only
10% to 25% of Social Security cases have oral argument. Since trials in Social Security
cases are rare, oral argument is the only opportunity for a claimant or his representative to
appear before the court to advocate and interact with the court. An opportunity for oral
argument and full briefing of each case will afford a full and dynamic airing of the issues
on appeal that will not occur with just a review of the record certified from SSA and
briefs alone. The benefit of local access to the district courts has little meaning when
most Social Security claimants and their representatives essentially are afforded no
opportunity to appear before the district courts. The current proposal recommends the
routine holding of oral arguments to give the claimants their day in court.


37
   Judicial Facts, Table 4.4, supra note 11, at n. 11.
38
   Verkuil and Lubbers, supra note 36, at 26-27, quoting, Federal Courts Study Committee, Working
Papers and Subcommittee Reports (Vol. I) 285-286 (July 1, 1990).
39
   All such dispositive motions, regardless of whether they are argued, are aggregated under the “before
pretrial” column of the annual Table C-4, which is part of each of the 1997-2005 Annual Reports of the
Director of the Administrative Office of the U.S. Courts,
http://www.uscourts.gov/judbususc/judbus.html.


                                                     9
Another indicator that the district courts feel burdened by the Social Security cases is that
the median time from filing to disposition of all Social Security cases, compared to the
median disposition time for all civil cases that are disposed of by the district courts before
the pretrial phase, was 30% and 41% longer respectively in fiscal years 2003 and 2004.
The relative improvement to 8.4% longer in fiscal year 2005 was more because the
disposition time for all civil cases increased than the disposition time for Social Security
cases improved. The median disposition time is close to one year, which means that as
many cases take longer than the median to be disposed of than less than the median.40
Anecdotal evidence suggests that district court disposition times in the major cities can be
two years or more for some Social Security cases. If the total time and resources that the
district courts give to each Social Security case is less than what is necessary for other
cases, as specialized court opponents state and likely is the case, then the only reasons for
the delay in disposition are that the large number of Social Security cases require
significant time and resources in the aggregate and/or the district court judges give Social
Security cases a lower priority than other cases.

While the district courts have reversed the SSA’s decisions and granted benefits in only
about 6% of the cases filed during all of the years from 1995 though 2004, the percent of
cases voluntarily and involuntarily remanded back to SSA without a decision on the
merits rose from 37% in 1995 to 59% in 2001. The remand rate declined to about 50% in
2002 and 2003 and was 46% in 2004. The rest of the cases, 35% to 57% per year, were
affirmed by the district courts. In 2004, after the court remands, the SSA subsequently
allowed 67% of the remanded cases.41 As is stated above, the ABA Report shows that,
even 20 years ago, the remand rate was far higher than the reversal rate. These statistics
suggest that, as the case burden has grown, the district courts have been “pushing back”
even more of the caseload to the SSA, rather than making decisions on the merits that
likely would result in more disabled claimants receiving a favorable decision from the
court without the need for a second proceeding at SSA.

Opponents of a Social Security Court point to the high remand rate back to SSA as
demonstrating that the need for technical expertise has been overestimated by proponents
of a specialized court, since all of the remands are purported to be to resolve factual
issues.42 However, even allowing for some further evidence development by SSA after
remand, the remarkably high grant rate by SSA after court remand (as well as a district
court affirmation rate that is six to 9.5 times the reversal rate since 1995) suggests that the
remand of so many meritorious cases is borne out of the district court judges’ discomfort
with reviewing medical records and making substantial evidence determinations on the
merits in favor of the claimants based upon the detailed rules of the Social Security
programs. This is one of the classic rationales for a specialized court. Interestingly, the

40
   Judicial Facts at Table 6.3 (the median disposition time for all civil cases that were disposed of by the
district courts before the pretrial phase during fiscal years 2003, 2004 and 2005 respectively were 8.4, 7.8,
and 9.5 months) (2005), http://www.uscourts.gov/judicialfactsfigures/Table603.pdf; e-mail from Richard
Jaffe, staff member of the Legislative Office of the Administrative Office of the U.S. Courts, to Robin J.
Arzt (the median disposition time for all Social Security cases that were disposed of by the district courts
during fiscal years 2003, 2004 and 2005 respectively were 10.9, 11.0, and 10.3 months) (July 5, 2006).
41
   SSAB, Disability Decision Making 89, Chart 67, supra note 21, at n. 21.
42
   ABA Report, supra note 3, at 825.


                                                     10
relatively high district court affirmation rate and relatively low denial rate by the SSA of
cases after court remands suggests that the district courts have less of a problem making
determinations on the merits that are unfavorable to the claimants. With a 6% reversal
rate in the district courts, the fear that a Social Security Court would become the captive
of SSA to the claimants’ detriment has no merit.

If the approximately 4,800 claimants whose cases were remanded in 2004 to SSA by the
district courts and who subsequently were granted benefits by SSA are any guide, every
year there are thousands of claimants who appeal to the district courts with meritorious
cases the correct decisions of which are being delayed for additional years because the
district courts are not addressing them on the merits. A benefit of a specialized court is
that its judges likely will dispose of a significantly higher proportion of cases on the
merits, rather than rely on remand to clear its docket and avoid making the decisions that
favor the claimants, which also likely will result in a higher reversal rate.

In addition, the practice of having the Magistrates handle many of the Social Security
appeals in the stead of the district court judges has not changed over the years.
Magistrates disposed of between 38.2% and 43.7% of the Social Security cases on which
court action was taken in the district courts during fiscal years 1998-2005.43
Accordingly, since Magistrates are Article I judges, about four out of ten Social Security
claimants already receive initial judicial review of their cases by Article I judges.

Criticism of the use of Article I judges in a Social Security Court because judicial review
of Social Security cases is “too important” for specialized court review stems from a
perception that Article I judges would provide second class justice. Yet opponents of an
Article I Social Security Court also argue that one of the reasons that the district courts
are not burdened by Social Security cases is that the district courts use their Article I
Magistrates to dispose of many of the Social Security cases. It is difficult to reconcile
why it is not a problem to use Article I Magistrates to dispose of Social Security cases,
especially when Magistrates have little time to spare for the Social Security cases because
of their many duties, with it being anathema to use Article I judges in a specialized court
to dispose of Social Security cases on a full time basis. This internally inconsistent
argument fails to be persuasive especially since the creation of the Article I Veterans
Court in 1988, which reviews our veterans’ appeals of disability claims decided by the
Veterans Administration. With the advent of the Veterans Court, the “second class
43
  Court action was taken on 12,049 Social Security cases of the 13,019 disposed of during fiscal year 1998,
14,342 Social Security cases of the 15,537 disposed of during fiscal year 1999, 13,527 Social Security
cases of the 14,731 disposed of during fiscal year 2000, 13,944 Social Security cases of the 15,333
disposed of during fiscal year 2001, 15,725 Social Security cases of the 17,422 disposed of during fiscal
year 2002, 15,760 Social Security cases of the 17,372 disposed of during fiscal year 2003, 16,132 Social
Security cases of the 18,217 disposed of during fiscal year 2004, and 12,865 Social Security cases of the
15,360 disposed of during fiscal year 2005. Judicial Business, 1998-2005 Reports, supra note 39, at Tables
C-3B and C-4. Of the Social Security cases on which court action was taken in the district courts,
Magistrates disposed of 43.7% (5,261 cases) during fiscal year 1998, 42.8% (6,132 cases) during fiscal
year 1999, 40.8% (5,516 cases) during fiscal year 2000, 39.5% (5,514 cases) during fiscal year 2001,
42.3% (6,654 cases) during fiscal year 2002, 41.1% (6,472 cases) during fiscal year 2003, 38.2% (6,160
cases) during fiscal year 2004, and 42.6% (5,486 cases) during fiscal year 2005. Judicial Business, 1998-
2005 Reports, supra note 39, at Table S-17.


                                                    11
justice” argument against an Article I court for Social Security cases necessarily becomes
the notion that Article I judge review of disability claims is good enough for our veterans
but not good enough for the rest of us who may make Social Security claims. Such a
viewpoint is not shared by the Judicial Conference and SSAB, and is unacceptable even
though our veterans were not entitled to judicial review of their claims until the Veterans
Court was formed.

In sum, from the point of view of a Social Security claimant, a 6% reversal rate is
not a lot of value added for a district court process that usually takes about a year
and can take two years or more in the major cities, when Article I Magistrates hear
many of the cases and SSA is ending up granting two-thirds of the court remanded
cases in second proceedings that add even more processing time. There already is
an Article I court in place for initial judicial review of veterans’ disability claims.

Regarding the issue of the judicial independence of the judges who decide Social
Security cases, the judicial independence argument for maintaining Article III judicial
review of Social Security cases superficially is compelling, since there is no more
independent decision maker in the federal government than an Article III judge.
However, the argument for maintaining Article III judicial review of Social Security
cases is far more compelling for the second step of judicial review, than for the
district court level. First, the district courts do not hold trials of fact de novo in Social
Security cases, as they do in the other areas of their jurisdiction. Instead, the district
courts perform judicial appellate review of the certified records in Social Security cases
to determine whether there is substantial evidence to support the SSA’s final
administrative decisions on whether claimants are disabled.44 In addition, the need for
uniformity of decisions at the first level of judicial review now is well recognized.45
Also, the recommendations in the current proposal to protect the independence of Article
I Social Security Court judges with (1) statutory provisions against arbitrary or retaliatory
removal from office, and (2) a full salary pension after one 15 year term of service to
eliminate fear of economic diminishment from non-reappointment, would go a long way
to maximize their independence, as has been done for the judges of the other Article I
courts.46 Finally, the current proposal preserves Article III court review as of right at the
second level of judicial review before the regional Circuit Courts of Appeals, as is
recommended by the Judicial Conference for review of Article I court decisions, in order
to preserve the Article III courts’ traditional role in serving as the protector against
government program abuses, Constitutional violations, and breaches of legal norms.47
The typical Social Security case does not raise issues of government program abuses,
Constitutional violations, or breaches of legal norms. However, the presumption by
opponents of a specialized court that it would not appropriately address such issues is
based only on speculation, not any significant adverse experience from the functioning of
existing Article I courts, such as the Veterans Court and United States Tax Court (“Tax
Court”). Under the current proposal, those cases that do raise such issues that are not

44
   42 U.S.C. § 405(g) of the Social Security Act.
45
   See text supra at notes 33-35.
46
   See text infra at notes 159-168, 184-223.
47
   See text supra at note 33 and infra at 52-58, 133-138.


                                                     12
corrected even at the Article I court level could be appealed as of right to the regional
Circuit Courts.

As the ABA resolution itself indicates, the impetus for the Resolution opposing the
formation of an Article I Social Security Court was the introduction of two bills in the
House in 1986 that included provisions for such a Court.48

Some of the arguments stated in the ABA Report against the formation of a Social
Security Court, ie., that a specialized court would not fully relieve the district courts
of its Social Security caseload or ensure uniformity of decisions across the country,
but would result in the undesirable elimination of Article III judicial review of the
specialized court’s decisions at the intermediate level, actually are valid arguments
only against specific poorly considered provisions in the two 1986 bills, but not
against the formation of a properly constituted specialized court. These legislation-
specific arguments erroneously have been reiterated as arguments against a Social
Security Court in the general, and therefore need to be addressed.

First, the ABA Report states two reasonable concerns about the provisions in the two
1986 bills that would have left exclusive jurisdiction with the district courts over Social
Security Act benefits cases that include claims under the Constitution or that challenge
the validity of an SSA regulation. One concern was that the bifurcation of the
jurisdiction over Social Security issues between a Social Security Court and the district
courts still would require the district courts to decide a substantial number of Social
Security cases, which undercuts a primary argument for a specialized court: to relieve the
overburdened district courts of the large Social Security caseload.49 Another concern was
that another primary argument in favor of a Social Security Court, that the Court would
fulfill the need for uniformity of decision making across the country in the large national
Social Security program, is undermined by the bifurcation of jurisdiction, since conflicts
among the Circuits would continue on the Constitutional and regulatory challenges that
the regional Circuit Courts of Appeals would continue to hear from the district courts.50

Both of the concerns correctly criticize the bifurcation of Social Security jurisdiction
between a Social Security Court and the district courts that was in the two 1986 bills.
However, these concerns are obviated fully by placing the exclusive jurisdiction to
review the SSA’s final administrative decisions of Social Security Act benefits cases,
including all relevant issues of law related to these cases, with the Social Security Court.
The current proposal recommends that a Social Security Court have the authority to
decide all relevant questions of law, including the interpretation of constitutional,
statutory, and regulatory provisions.51 Therefore, while the concerns raised about the
consequences of leaving a portion of the Social Security caseload with the district courts
were valid criticisms of the two 1986 bills, they are not valid arguments against the
formation of a properly constituted specialized court. A Social Security Court that has

48
   H.R. 4419, 99th Cong., 2nd Sess. (1986); H.R. 4647, 99th Cong., 2nd Sess. (1986).
49
   ABA Report, supra note 3, at 825-826.
50
   Id. at 826-827.
51
   See infra text at notes 107-113.


                                                   13
exclusive jurisdiction of over all relevant issues of law related to Social Security Act
benefits cases would fully relieve the district courts of the large Social Security
caseload and fulfill the need for national uniformity of decision making for the
Social Security programs at the first step of judicial review.

Second, the ABA Report states a correct rationale for the undesirability of provisions in
the two 1986 bills that would have appeals from Social Security Court decisions heard by
the Circuit Court of Appeals for the Federal Circuit (“Federal Circuit”). The reasoning
stated against Federal Circuit review is that regional Circuit Court review creates a higher
quality of precedents as an issue is developed, both for use among the Circuit Courts and
for the benefit of the Supreme Court when it resolves disagreements, than could be
generated by the Federal Circuit alone.52 For the intermediate step of judicial review,
diversity of appellate judicial review accurately is seen as a greater good than uniformity
of decision making for the Social Security programs:

        The current system, which allows Circuit Courts of Appeal to set precedent for
        their circuit until such time as the Supreme Court decides issues upon which
        circuits disagree, improves the quality of precedents. As the Circuit Courts of
        Appeal grapple with hard issues which come before them, they can be informed
        by and expand upon decisions of other Circuits. When the Supreme Court
        decides an issue upon which Circuits have disagreed, it then has access to the best
        thinking on the issue and a number of well reasoned views on the subject. Thus,
        when the Supreme Court finally decides an issue, it is well informed and can
        consider all of the alternatives. This constant refining of issues before their final
        adjudication would be absent from the new Social Security Court system
        proposed [in the 1986 legislation].53

Thus, the formation of a Social Security Court was opposed because the Federal Circuit
review was seen as an “attempt[t] to circumvent the judicial system which so wisely
respects the process which occurs when different Circuits disagree on an issue….” that
“would undermine important values inherent in our current judicial system.”54 These
arguments are in accord with those supporting the recommendation by the Judicial
Conference in its Long Range Plan for the Federal Courts that

        In general, the actions of administrative agencies and decisions of Article I courts
        should be reviewable directly in the regional courts of appeals….The critical
        importance of Article III judicial review to ensure compliance with constitutional
        and other legal norms is historically proven. But on “substantial evidence”
        questions regarding the sufficiency of an agency’s factual findings, only one
        opportunity for that review should be guaranteed as of right.”55



52
   ABA Report, supra note 3, at 827.
53
   Id. at 827.
54
   Id.
55
   Judicial Conference, Long Range Plan, supra note 33, 46-47.


                                                   14
In short, diversity of appellate review at the intermediate step of appellate review, with an
appeal as of right, well serves the judicial review process.

There also is one simple fact that was not raised by the drafters of the ABA Report that
renders Federal Circuit review an impractical option: the size of the Social Security
appellate caseload would overwhelm the Federal Circuit. Placing all of the Circuit-level
Social Security benefits claims appeals in the Federal Circuit would increase the Federal
Circuit’s caseload by about 50 percent. During the years ending March 31, 2004, and
March 31, 2005, respectively 768 and 690 Social Security cases were filed with the
regional Circuit Courts of Appeals, among the total of 45,769 and 47,094 cases of all
types combined that were filed.56 During the years ending March 31, 2004, and March
31, 2005, respectively only 1,515 and 1,637 cases of all types combined were filed with
the Federal Circuit.57 Thus, adding the Social Security Act benefits appeals caseload to
the Federal Circuit docket would be an impractical burden.

Therefore, there were valid concerns about the provisions in the two 1986 bills that
would have appeals from Social Security Court decisions heard by the Federal Circuit.
However, these concerns are addressed fully by having the regional Circuit Courts
review the Social Security Court decisions. The current proposal recommends that the
regional Circuit Courts have exclusive jurisdiction to review the Social Security Court
decisions in the same manner and to the same extent as decisions of the District Courts in
civil actions that are tried without a jury.58 Therefore, while the concerns about the
consequences of Federal Circuit review of a Social Security Court’s decisions were valid
criticisms of the two 1986 bills, they are not valid arguments against the formation of a
properly constituted specialized court, the decisions of which are reviewed by the
regional Circuit Courts. Review of Social Security Court decisions by the regional
Circuit Courts preserves diversity of appellate judicial review at the intermediate
step of judicial review while permitting uniformity of decision making for the Social
Security programs at the first step of judicial review.

Another reason stated in the ABA report to oppose a Social Security Court that was not
mentioned by Mr. Pickering at the 1986 ABA Annual Meeting was that such a court
would result in significantly limiting the access of claimants and their representatives to
appear before the court: “Even if members of a Social Security Court would circuit-ride,
unless enormous resources were expended, it seems unlikely that hearings could occur in
every place where federal district courts currently sit.”59

The advent of modern communications technology during the 20 years since the
ABA Report was written, such as video teleconferencing (“VTC”) with digital
recording and fax equipment has eliminated court access as a significant concern in
56
   Judicial Business of the United States Courts: 2005 Annual Reports of the Director at Table B-7,
available at http://www.uscourts.gov/judbus2005/contents.html; Judicial Business of the United States
Courts: 2004 Annual Reports of the Director, Table B-7, available at
http://www.uscourts.gov/judbus2004/contents.html.
57
   Id. at Tables B-8.
58
   See infra text at notes 133-138.
59
   ABA Report, supra note 3, at 827.


                                                   15
forming a Social Security Court. Both SSA and the federal courts have VTC
networks in place.

A Social Security Court would not hold trials or hearings, the same as the district courts
currently do not hold trials or hearings in Social Security cases. However, the current
proposal recommends the holding of oral arguments as a matter of routine, rather than the
exception, as oral arguments now are held in the district courts. The opportunity for oral
argument and full briefing of each case will afford a full and dynamic airing of the issues
on appeal that will not occur with just a review of the record certified from SSA and
briefs alone.

The current proposal also recommends the regional placement of the Court in the five
cities of the regional headquarters of the five most populous regional offices of the SSA,
New York City, Atlanta, Chicago, Dallas, and San Francisco, in order to provide regional
access to the claimants and their representatives. Because regional access to the Court is
only a partial answer to this important issue, the current proposal also requires that oral
arguments be held within 75 miles of where the claimants reside or by VTC, at the
election of the Judges of the Court. Although the represented claimants need not be
present at the oral arguments, since they are not evidentiary hearings, the standard of
access provided by SSA to afford the claimants full access to SSA’s hearing process is
recommended for the Court so that the claimants can be present if they so chose and so
that the representatives have easy access. Also, pro se claimants require easy access to
the Court to appear for oral argument. The Court would be authorized to use facilities
and hold court throughout the United States. The facilities of the Federal courts and other
comparable facilities administered by the General Services Administration (“GSA”),
including the SSA network of VTC facilities, would be made available for proceedings
outside of New York City, Atlanta, Chicago, Dallas, and San Francisco.60

The existing SSA VTC network locations far exceed the number of available district
court locations. SSA has set up VTC hearing rooms with a digital recorder and fax
equipment in each of its 140 hearing offices and all of the permanent remote sites that are
satellites of the hearing offices around the country, so that SSA now has over 300 sites in
its network.61 The SSA VTC network works well.62 SSA’s sharing of its VTC network
with the Department of Health and Human Services (“DHHS”) for a per hearing fee
enabled DHHS to take back jurisdiction over the ALJ hearing process in Medicare cases
in October 2005.63 There are 94 U.S. district courts, some of which have satellite

60
   See infra text at notes 86-90.
61
   Memorandum from David G. Hatfield, Acting Chief Administrative Law Judge, Video Hearings Project
Team Receives Government Solutions Center Pioneer Award - INFORMATION (July 6, 2006).
62
   The high quality of SSA’s VTC network garnered SSA’s video hearings team the Pioneer Award in the
8th Annual Government Solutions Center competition sponsored by Federal Computer Week and the E-Gov
Institute “for innovative use of technology in a government program.” Id.
63
   Tommy G. Thompson, Secretary of the U.S. Dep’t of Health and Human Services, and Jo Anne B.
Barnhart, Commissioner, SSA, Report to Congress: Plan for the Transfer of Responsibility for Medicare
Appeals: Developed under section 931 of the Medicare Prescription Drug, Improvement and
Modernization Act of 2003, Pub. L. 108-173, 117 Stat. 2066, 7, 14, 18 (March 2004),
http://www.ssa.gov/legislation/medicare/medicare_appeal_transfer.pdf.


                                                 16
offices.64 Many district courts also have modern electronic courtroom facilities that may
be accessed by the Social Security Court as they are available.

Accordingly, with the advent of VTC and related technologies, providing the Social
Security Court with VTC systems in its courtrooms will allow local access by the
claimants and their representatives to the Court at a reasonable cost to the
government from hundreds of locations around the country through the existing
VTC networks of the SSA, federal courts, and other agencies.

Finally, an additional rationale in opposition to a Social Security Court that was stated at
the 1986 ABA Annual Meeting by another proponent of the resolution, but was not
included in the ABA Report, was that “an overwhelming majority of judges in the Social
Security system opposed the concept of an Article I Court because passing the review
responsibility from the Article 3 to the Article I judiciary missed the point and gave
misleading signals.”65 The proponent did not say what point was being missed or what
misleading signals would be given by the formation of a Social Security Court. In
addition, no factual basis was stated to support the statement that the SSA ALJ corps
strongly opposed an Article I Social Security Court, and there does not appear to be any.
There has been no policy position taken on whether a Social Security Court should be
formed by the organization that has been representing the SSA ALJs since the 1970s, the
Association of Administrative Law Judges. There also is no record of any survey or poll
of SSA ALJs taken on the issue. In short, this statement was in fact an opinion only of
the speaker that added nothing of substance to the arguments whether there should be a
Social Security Court.


                                             II.

NECESSARY ATTRIBUTES OF A SOCIAL SECURITY COURT
Regardless of whether the ABA’s current policy in opposition to the formation of an
Article I Social Security Court is continued or changed to support such a court, it now is
essential to also adopt detailed recommendations for the necessary attributes of such a
court to aid the ABA in addressing any forthcoming proposals or legislation. The
potential for the formation of a Social Security Court has increased because both the
Judicial Conference and SSAB support the formation of such a court and there now is (1)
the SSA’s imminent new administrative process that both eliminates the claimants’
appeal of an ALJ’s decision to the final administrative step and permits the claimants to
appeal an ALJ’s decision that is a final SSA decision directly to the district courts, which
likely will increase the number of cases filed in the district courts, and (2) the generally
increasing burden that the Social Security cases impose on the district courts.




64
     28 U.S.C § 133; http://www.uscourts.gov/faq.html.
65
     1986 Am. Bar Ass’n Annual Meeting Report, p. 50.


                                                    17
If the administration and Congress choose to create a Social Security Court, a decision by
the ABA to just continue opposing the formation of a Social Security Court without also
adopting recommendations for the necessary attributes of a Social Security Court neither
prepares the ABA to engage in a discussion of what such a court should be nor offer the
policy makers the ABA’s point of view of what such a court should be.

Accordingly, the following is a detailed proposal for the necessary attributes of a Social
Security Court.

        A.       COURT STRUCTURE
NAME OF COURT: The court would be known as the United States Social
Security Court (the “Court”).


COMPOSITION OF THE COURT: The Court should be composed of at least 30
judges, one of whom will serve as Chief Judge.

Unlike the United States Tax Court (“Tax Court”), United States Court of Federal Claims
(“Federal Claims Court”), and United States Court of Appeals for the Armed Forces
(“Armed Forces Court”), for which a precise number of judges is fixed,66 or the Veterans
Court, for which a small band for the number of judges is fixed,67 only a lower bound is
set for the size of the Court to allow flexibility for the appointment of sufficient judges to
handle the caseload.

The caseload for the Court will be large, so the Court will need to be larger than the other
Article I courts. During the years that ended on March 31 of 2003, 2004 and 2005, the
district courts respectively received 18,080, 16,172, and 16,181 Social Security Act
benefits appeals from SSA Appeals Council decisions.68 Even with 30 judges, each
judge would hear over 500 cases per year.

Based on a comparison to the caseload and size of the seven judge Veterans Court, a
2002 report prepared by Professors Paul Verkuil and Jeffrey Lubbers for the Social
Security Advisory Board (“SSAB”) that recommended an Article I Social Security Court
to replace District Court judicial review estimated that the Court would need 45 judges.69
During the fiscal years that ended on September 30 of 2003, 2004 and 2005, the seven

66
   The number of judges specified for the Tax Court is 19 judges. 26 U.S.C. § 7443(a). The Federal
Claims Court has 16 judges. 28 U.S.C. § 171(a). The Armed Forces Court has five judges. 10 U.S.C. §
942(a).
67
   The number of judges specified for the Veterans Court is at least three and not more than seven judges.
38 U.S.C. § 7253(a).
68
   Judicial Business of the United States Courts: 2005 Annual Reports of the Director at Table C-2, at
http://www.uscourts.gov/judbus2005/contents.html; Judicial Business of the United States Courts: 2004
Annual Reports of the Director, Table C-2, at http://www.uscourts.gov/judbus2004/contents.html; Business
of the United States Courts: 2003 Annual Reports of the Director at Table C-2, at
http://www.uscourts.gov/judbus2003/contents.html.
69
   Verkuil and Lubbers, supra note 36, at 65.


                                                   18
judge Veterans Court respectively received 2,532, 2,234, and 3,466 new cases,70 which
are appeals from about 24% to 26% of the partially or fully unfavorable decisions of the
Board of Veterans’ Appeals.71 However, cases with no involuntary adverse
determination on the merits are disposed of by the Clerk of the Veterans Court without
the need for action by a judge: voluntary joint remands agreed to by the parties, cases
settled by the parties through the Veterans Court’s voluntary settlement program,
voluntary remands in part and affirmances or dismissals in part agreed to by the parties,
voluntary dismissals, and nearly all dismissals for defaults and lack of jurisdiction. This
resulted in the judges needing to decide about 700, 620 and 700 of the cases respectively
in fiscal years 2003, 2004 and 2005.72 Of the cases that the judges hear, only 1% include
oral argument, which either occurs in Washington, D.C., or by telephone conference
call.73 The Tax Court procedure requires judge action on all matters. Tax case
settlements are placed on a calendar call and a judge signs a judgment to end the case by
the end of the calendar call.

In addition, as is stated above, (1) the district court caseload has more than doubled since
fiscal year 1990, (2) most cases are decided without oral argument, (3) 37% to 59% of the
district court cases since 1995 have been disposed of by remands back to the SSA, rather
than decisions on the merits, and (4) of the cases that the district courts decide on the
merits, they have a 6% reversal rate in favor of the claimants during all of the years from
1995 though 2004 and have an affirmance rate that is six to 9.5 greater than the reversal
rate during those years.74 The Court will be an improvement over the present process, if
the Court provides a higher percent of dispositions on the merits than the district courts
and affords the claimants a meaningful opportunity to be heard at oral argument, which
requires a sufficient number of judges.

There is an additional concern that relates to the necessary size of the Court. SSA
recently published its final regulations regarding its administrative review process for
adjudicating initial disability claims that laudably will gradually phase out the Appeals
Council and replace it with a Decision Review Board (“DRB”) composed of
Administrative Law Judges (“ALJs”) and Administrative Appeals Judges (“AAJs”).75
However, the new regulations also eliminate the claimants’ right to an administrative
appeal from an individual ALJ’s disability decision that is made on the merits to the
DRB76 and instead permits an appeal directly to court.77



70
   United States Court of Appeals for Veterans Claims Annual Reports, at
http://www.vetapp.gov/AboutCourt/Annual%20Reports.pdf.
71
   The Board of Veterans’ Appeals partially or fully denied about 10,200, 9,300 and 13,000 claims in Fiscal
Years 2003, 2004 and 2005, respectively. Fiscal Year 2004 Report of the Chairman, Board of Veterans’
Appeals at 12-13, at http://www.va.gov/Vetapp/ChairRpt/BVA2004AR.pdf; Clerk of the Veteran’s Court.
72
   Veterans Court Annual Reports, supra note 70, at n. 5.
73
   About the Court, Court Facts, Procedures, at http://www.vetapp.gov/aboutcourt/courtfacts.asp.
74
   See text supra at notes 8-11, 41.
75
   SSA Administrative Review Process for Adjudicating Initial Disability Claims, 71 Fed. Reg. 16454 (final
rule March 31, 2006) (to be codified at 42 C.F.R. § 405.405(a)).
76
   71 Fed. Reg. at 16454 (to be codified at 42 C.F.R. § 405.405(b)).
77
   71 Fed. Reg. at 16447, 16454 (to be codified at 42 C.F.R. §§ 405.1(b)(3)-(5), 405.373(c)(2)).


                                                    19
Congressional testimony on behalf of the Judicial Conference of the United States (1)
stated its opposition to “the elimination of a claimant’s right to request review of an
administrative law judge’s adverse decision by the Appeals Council, or another
administrative reviewing unit with comparable authority, prior to seeking relief in federal
district court” because of a concern about a large increase in the number of court appeals
that would burden the courts and cause greater disposition delays, and (2) cogently
explained the need for a specialized administrative tribunal to which a Social Security
disability benefits claimant can appeal an ALJ’s decision in the context of the recent
adverse experience of skyrocketing numbers of immigration case appeals to the courts
since the “streamlining” of the Board of Immigration Appeals decision making
procedures.78 In the preamble to the SSA’s final regulations, the SSA acknowledged that
many commentators on the proposed version of its regulations, including the Judicial
Conference, expressed concern that eliminating the claimants’ final administrative appeal
from an individual ALJ’s decision would greatly increase court appeals.79

The SSAB stated in its comments on the SSA’s proposed regulations that the SSAB also
received many comments of concern that the elimination of a claimant’s right to request
an administrative review of an ALJ’s adverse decision would potentially greatly increase
the number of cases filed for district court review and prevent claimants from obtaining
administrative correction of erroneous hearing decisions. However, the SSAB also
suggested that SSA’s changes of the earlier stages of its administrative review process
could and should result in a substantially reduced volume of cases needing review at the
later steps in the process80 (ie., the changes in the state disability agencies’ initial
determination process and the replacement of the state disability agencies’ “rubber
stamp” reconsideration step with reviewing officials who will be attorneys and SSA
employees). The SSAB also urged consideration of a Social Security Court “that could
provide more expeditious review of disability appeals, eliminate the impact of such cases
on the District Court workloads, and produce more uniform application of disability
policy throughout the Nation.”81

There are a large number of claimants’ appeals from individual ALJ decisions to the
Appeals Council: about 92,500 in the fiscal year 200482 and over 89,000 in fiscal year
2005.83 If the changes regarding the early steps in the SSA process do not reduce the
case flow sufficiently to offset the widely expected adverse effect on the case receipts at

78
   Joint Hearing on the Commissioner of Social Security’s Proposed Improvements to the Disability
Determination Process before the House Subcommittees on Human Resources and Social Security of the
Committee on Ways and Means, 109th Cong. (1st Sess., September 27, 2005) (statement of Hon. Howard
D. McKibben, Chair, Judicial Conference Committee, Federal-State Jurisdiction, Administrative Office of
the U.S. Courts).
79
   71 Fed. Reg. at 16439-16440.
80
   SSAB Comments, supra note 35, at 7-8.
81
   Id. at 8.
82
   SSA Office of Hearings and Appeals Annual Report for Fiscal Year 2004 at 7, at
http://ohaweb.ba.ssa.gov/ohanet/OAC/acquarterly/annual_report_2004-4thQtrRpt.pdf. Fiscal Year 2004
ended September 30, 2004.
83
   SSA Office of Hearings and Appeals Annual Report for Fiscal Year 2005 at 7, at
http://ohaweb.ba.ssa.gov/ohanet/OAC/acquarterly/annual_report_2005-4thQtrRpt.pdf. Fiscal Year 2005
ended September 30, 2005.


                                                  20
the first level of judicial review of eliminating a claimant’s right to request an
administrative review of an ALJ’s adverse decision, a concomitant increase in the size of
the Court above 30 to 45 judges would be required. Since SSA is phasing in the
implementation of its new disability process regulations region by region, mid-course
changes in the regulations at the various steps may occur to improve the process.


APPOINTMENT OF THE JUDGES: Judges of the Court should be appointed by
the President, by and with the advice and consent of the Senate, solely on the
grounds of fitness to perform the duties of the office. A person should not be
appointed to the Court who is not a member in good standing of the bar of a Federal
court or of the highest court of a State. Not more than the number equal to the next
whole number greater than one-half of the number of judges of the Court should be
members of the same political party.84 The appointment should specify the regional
division of the Court to which a judge is assigned as his permanent duty station.

We may want to consider the desirability and political feasibility of specifying that a
desired or required aspect of fitness to perform the duties of the office of a judge of the
Court is: (1) substantial experience as an administrative law judge (“ALJ”) who has heard
and decided Social Security Act benefits claims and/or reviewed Social Security Act
benefits claims decisions by ALJs as a member of the SSA Decision Review Board, (2)
substantial experience as an administrative appeals judge (“AAJ”) who has reviewed
Social Security Act benefits claims decisions by ALJs as a member of either the SSA
Appeals Council and/or SSA Decision Review Board, (3) substantial experience as a
representative of Social Security Act benefits claimants before the Social Security
Administration (“SSA”) and the courts, and/or (4) substantial academic expertise
regarding the Social Security Act laws, related regulations, and adjudication process that
is demonstrated by significant scholarly publications in the subject area.


JUDGES’ TERM OF OFFICE: The term of office of the judges of the Court should
be 15 years. A judge who is nominated by the President for appointment to an
additional term on the Court without a break in service and whose term of office
expires while that nomination is pending before the Senate should continue in office
for up to 1 year while that nomination is pending.85


REGIONAL DIVISIONS AND OFFICES: The principal offices of the Court
should be in the five cities of the regional headquarters of the five most populous
regional offices of the SSA, which currently are New York City, Atlanta, Chicago,


84
   These provisions are identical to those for the Armed Forces Court and Veterans Court. 10 U.S.C. §§
942(b)(1), 942(b)(3); 38 U.S.C. § 7253(b).
85
   These provisions are identical to those for the Veterans Court. 38 U.S.C. § 7253(c). Armed Forces
Court, Tax Court, and Federal Claims Court judges also have a 15 year term of office. 10 U.S.C. §
942(b)(2), 26 U.S.C. § 7443(e), 28 U.S.C. § 172(a).


                                                   21
Dallas, and San Francisco, 86 but the Court or any of its regional divisions may sit at
any place within the United States.87

Regional placement of the Court makes sense to provide access for claimants and their
representatives, avoid the need and cost for national travel for all of the judges, and to
ensure judges’ familiarity with the laws of the circuits that their regions cover.


TIMES AND PLACES OF SESSIONS: The times and places of sessions of the
Court should be prescribed by the Judges of the Court with a view to securing
reasonable opportunity to benefits claimants to appear before the Court with as
little inconvenience and expense to benefits claimants as is practicable.88 Oral
arguments should be held within 75 miles of where the benefits claimants resides or
by video teleconference, at the election of the Judges of the Court.89 The Court
should be authorized to use facilities and hold court throughout the United States
(including its territories and possessions) as is necessary for compliance with this
section. The facilities of the Federal courts and other comparable facilities
administered by the General Services Administration, including the SSA video
teleconferencing facilities, should be made available for proceedings outside of New
York City, Atlanta, Chicago, Dallas, and San Francisco.90


DESIGNATION OF CHIEF JUDGE: The judges of the Court will at least
biennially designate a judge to act as the Chief Judge. 91

Rotating the Chief Judge responsibility on a regular basis ensures collegiality and shared
responsibility in the operation of the Court, much as the responsibility for chairing
academic departments operates. An election by the judges ensures that a majority of the
Court feels comfortable with the designated Chief Judge.



86
   Five regional offices of the Court were recommended in Verkuil and Lubbers, supra note 36, at 58-59
and 65-66, which described a 1985-1986 Department of Justice draft bill that posited a Social Security
Court with five regions in New York City, Atlanta, Chicago, Dallas, and San Francisco to provide
claimants access to the courthouse.
87
   This provision is identical to the provision for the Tax Court. 26 U.S.C. § 7445
88
   This provision is similar to the provisions for the Tax Court and Federal Claims Court. 26 U.S.C. §
7446; 28 U.S.C. §§ 173, 2503(c).
89
   This provision is based upon SSA’s practice of holding ALJ hearings within 75 miles of the claimant’s
residences or workplaces either by physically sending the ALJ to the locality or holding the hearing by
video teleconference. 20 CFR §§ 404.929, 404.936, 404.938, 404.950, 416.1429, 416.1436, 416.1438,
416.1450. SSA reimburses claimants for travel to hearings if they live or work more than 75 miles from
the hearing site. 20 CFR §§ 404.999c, 416.1498.
90
   These provisions are similar to the provisions for the Federal Claims Court. 28 U.S.C. § 798(a).
91
   This is the method of the Tax Court, 26 U.S.C. § 7444(b), which appears preferable to the mechanical
rules set for the selection of the Armed Forces Court and Veterans Court Chief Judges, 10 U.S.C. § 943(a),
38 U.S.C. § 7253(d), or the selection of the Chief Judge by the President as is specified for the Federal
Claims Court, 28 U.S.C. § 171(b).


                                                    22
POWERS OF THE CHIEF JUDGE: The chief judge of the Court is the head of the
Court.

If a regional division is composed of less than the number of judges designated for
the division as a result of a vacancy or the absence or inability of a judge assigned
thereto to serve thereon, the Chief Judge may assign other judges to the regional
division or direct the division to proceed with the transaction of business without
awaiting any additional assignment of judges thereto.92

The Chief Judge may effect the voluntary transfer of a judge’s permanent duty
station from one regional division to another when a judge requests the transfer and
the transfer serves the efficiency and economy of the Court.

A majority of the Chief Judge and Regional Chief Judges will decide which
decisions will have precedential value and be published.

Other powers of the Chief Judge appear as part of other recommendations.


DESIGNATION OF REGIONAL CHIEF JUDGES:

The Chief Judge should at least biennially designate a judge to act as the Regional
Chief Judge for each of the Regional Divisions, except the Regional Division in
which the Chief Judge sits. The position of Regional Chief Judge should be rotated
among the judges whose permanent duty station is in each Regional Division. The
Chief Judge should be the Regional Chief Judge for the Regional Division in which
the Chief Judge sits.

The powers of the Regional Chief Judges appear as part of other recommendations.


PANELS: The Court may hear cases by judges sitting alone or in panels, as is
determined pursuant to procedures established by the Court. Any such panel
should have not less than three judges. The Court should establish procedures for
the assignment of the judges of the Court to such panels and for the designation of
the chief of each such panel. A majority of the judges of a panel of the Court should
constitute a quorum for the transaction of the business of the panel. A vacancy in a
panel of the Court should not impair the powers or affect the duties of the panel or
of the remaining judges of the panel. 93


QUORUM AND EFFECT OF VACANCY: A majority of the judges of the Court
or of any regional division thereof should constitute a quorum for the transaction of

92
  These provisions are similar to the provisions for the Tax Court. 26 U.S.C. § 7444(c).
93
  These provisions are identical to the provisions for the Veterans Court. 38 U.S.C. §§ 7254(b),
7254(c)(2).


                                                    23
the business of the Court or of the regional division, respectively. A vacancy in the
Court or in any regional division thereof should not impair the powers nor affect the
duties of the Court or regional division nor of the remaining judges to exercise the
powers of the Court or regional division.94


PRECEDENCE OF JUDGES: The Chief Judge of the Court should have
precedence and preside at any session that the Chief Judge attends. A Regional
Chief Judge should have precedence and preside at any session that the Regional
Chief Judge attends, unless the Chief Judge also is in attendance. In the absence of
the Chief Judge and a Regional Chief Judge, the other judges should have
precedence and preside at sessions according to the seniority of their original
commissions. Judges whose commissions bear the same date should have
precedence according to seniority in age.95 The Chief Judge, Regional Chief Judge,
or other judge who presides at sessions based upon precedence also is authorized to
designate another judge of the Court to preside in his or her stead.96


JUDGES’ POWERS – JURISDICTION: Although each judge will be appointed to
a specific regional division of the Court as the judge’s permanent duty station,
judges of the Court may sit at any place within the United States.


JUDGES’ POWERS – OATHS OR AFFIRMATIONS: Judges of the Court should
have the authority to administer oaths or affirmations.

Although the Veterans Court does not hold evidentiary hearings or trials, it has the power
to administer oaths. The Tax Court and Federal Claims Court hold trials, so they
necessarily have the power to administer oaths or affirmations.97


JUDGES’ POWERS - SUBPOENAS: Judges of the Court should not need the
authority to issue subpoenas, since the Court should not hold evidentiary hearings
or trials or bear any burden to develop the record.

The Tax Court holds trials of the facts, so necessarily has the power to subpoena
documents and witness and compel witness appearances at depositions.98 The Veterans

94
   These provisions are similar to the provisions for the Armed Forces Court, Tax Court and Veterans
Court. 10 U.S.C. § 942(g), 26 U.S.C. § 7444(d), 38 U.S.C. § 7254(c)(1).
95
   These provisions are similar to the provisions for the Armed Forces Court and Veterans Court. 10 U.S.C.
§ 943(b), 38 U.S.C. § 7254(d).
96
   This provision permits maximum flexibility in who may perform the duty of presiding at sessions, which
would allow for more variety in presiding judge judicial styles and may aid in evening the judges’
workloads.
97
   This provision is similar to the provisions for the Tax Court, Federal Claims Court, and Veterans Court.
26 U.S.C. § 7456(a), 28 U.S.C. § 2503(c), 38 U.S.C. § 7254(e).
98
   26 U.S.C. § 7456(a)-(b).


                                                    24
Court, Federal Claims Court, and Armed Forces Court statutes do not specify subpoena
power. However, the Federal Claims Court is authorized to hold evidentiary hearings
and trials within and outside the United States and subpoena power is implicit in this
authority.99


JUDGES’ POWERS – CONTEMPT: Judges of the Court should have the power,
at their discretion, to punish by fine or imprisonment such contempt of the Court’s
authority as (1) misbehavior of any person in its presence or so near thereto as to
obstruct the administration of justice, (2) misbehavior of any of its officers in their
official transactions; or (3) disobedience or resistance to its lawful writ, process,
order, rule, decree, or command.100


ASSISTANCE TO THE COURT: The Court should have such assistance in the
carrying out of its lawful writ, process, order, rule, decree, or command as is
available to a court of the United States. The United States Marshal for a district in
which the Court is sitting should, when requested by the Chief Judge or a Regional
Chief Judge of the Court, attend any session of the Court in that district.101


REPRESENTATION OF PARTIES: The SSA Commissioner would be represented
before the Court by the SSA General Counsel or the General Counsel’s delegate.
The claimants would be represented in accordance with the rules of practice
prescribed by the Court. No qualified person should be denied admission to
practice before the Court because of his or her failure to be a member of any
profession or calling. Accordingly, in addition to members of the bar admitted to
practice before the Court in accordance with its rules of practice, the Court should
allow other persons to practice before the Court who meet the standards of
proficiency prescribed in the Court’s rules of practice.102


CLERK OF THE COURT: Each of the five regional divisions of the Court should
have a Regional Chief Clerk. The Chief Clerk of the Court should be the Regional
Chief Clerk of the regional division in which the Chief Judge sits. The Chief Clerk
and Regional Chief Clerks should have the authority to dispose of the cases that
have no involuntary adverse determination on the merits without the need for action
by a judge, such as voluntary joint remands agreed to by the parties, cases settled by
the parties, voluntary remands in part and affirmances or dismissals in part agreed


99
   28 U.S.C. §§ 798(a)-(b), 2503(c).
100
    This provision is similar to the provisions for the Tax Court and Veterans Court. 26 U.S.C. § 7456(c),
38 U.S.C. § 7265(a).
101
    This provision is similar to the provisions for the Tax Court and Veterans Court. 26 U.S.C. § 7456(c),
38 U.S.C. § 7265(b).
102
    These provisions are similar to those for the Tax Court and Veterans Court. 26 U.S.C. § 7452, 38
U.S.C. § 7263(b).


                                                    25
to by the parties, voluntary dismissals, and possibly dismissals for defaults and lack
of jurisdiction.

The case volume for the Court will warrant regionally located clerks of the Court and
staff, who also need to be where the judges and court sessions are to get the Court’s daily
business done.

Having the Chief Clerk position rotate to where the Chief Judge sits will simplify the
administration of the Court.

Clerk authority to dispose of the cases that have no involuntary adverse determination on
the merits greatly will increase the efficiency of the Court and help reduce the number of
judges needed to handle the caseload. As is stated in the “composition of the court”
section, cases with no involuntary adverse determination on the merits are disposed of by
the Clerk of the Veterans Court without the need for action by a judge. However the Tax
Court procedure requires judge action on all matters. In determining whether allowing
clerk dispositions or having all matters disposed of by the judges may achieve greater
efficiency of case dispositions, we need to consider the counter-intuitive results from the
Veterans Court and Tax Court: the Veterans Court has a backlog equal to close to two
years of new case filings103 but the Tax Court has a small backlog of cases equal to only
about 25% of one year of new filings.104


EMPLOYEES:

(a) The Court may appoint regional chief clerks without regard to the provisions of
title 5 governing appointments in the competitive service, 5 USC §§ 3301 et seq. The
five regional chief clerks will serve at the pleasure of the Court.

(b) The Judges of the Court may appoint law clerks and secretaries in such numbers
as the Court may approve without regard to the provisions of title 5 governing
appointments in the competitive service, 5 USC §§ 3301 et seq. Each law clerk and
secretary will serve at the pleasure of the appointing Judge.

(c) The regional chief clerks, with the approval of the Court, may appoint necessary
deputies and employees without regard to the provisions of title 5 governing

103
    As of mid February 2006, 5,166 cases were pending in the Veterans Court. Through 2004, the average
number of cases pending had been 2,500-3,000. Oral report by the Clerk of the Veterans Court (March 1,
2006). During 2004 and 2005, a total of 5,700 new cases were filed in the Veterans Court. Veterans Court
Annual Reports, supra note 70.
104
    During fiscal years 2004 and 2005, 24,200 and 24,700 cases respectively were filed in Tax Court and
22,800 and 23,900 cases respectively were closed. At the end of fiscal years 2004 and 2005, the Tax Court
respectively had 23,900 and 24,900 cases pending. As of the end of fiscal 2005, of the 24,900 cases that
were pending, only about 6,400 were pending for more than one year, which is a fair measure of any
backlog. Office of Chief Counsel, IRS, Counsel Automated Tracking System, Charts for Docketed
Inventory-Cases in Dispute, Tax Court – Receipts and Closures-All Cases, and Tax Court Inventory-Age of
Pending Cases-As of September 30, 2005 (provided by the Office of Chief Counsel, IRS).


                                                   26
appointments in the competitive service, 5 USC §§ 3301 et seq.

(d) The Court may fix and adjust the rates of basic pay for the regional chief clerks
and other employees of the Court without regard to the provisions of chapter 51, 5
USC §§ 5101 et seq., subchapter III of chapter 53, 5 USC §§ 5331 et seq., or section
5373 of title 5, 5 U.S.C. § 5373. To the maximum extent feasible, the Court will
compensate employees at rates consistent with those for employees holding
comparable positions in the judicial branch.

(e) In making appointments under subsections (a) through (c) of this section,
preference will be given, among equally qualified persons, to persons who are
preference eligibles as is defined in section 2108(3) of title 5, 5 U.S.C. § 2108(3).

(f) The Court may procure the services of experts and consultants under section
3109 of title 5, 5 U.S.C. § 3109.

(g) The Chief Judge and Regional Chief Judges of the Court may exercise the
authority of the Court under this section whenever there are not at least two other
judges of the Court in a given regional division.

(h) The Court will not be considered to be an agency within the meaning of section
3132(a)(1) of title 5, 5 U.S.C. § 3132(a)(1) [for the purposes of the subchapter
relating to employment of Senior Executive Service, 5 U.S.C. § 3131 et seq.].

(i) The Court may accept and utilize voluntary services and uncompensated
(gratuitous) services, including services as authorized by section 3102(b) of title 5, 5
U.S.C. § 3102(b) [relating to personal assistants to aid handicapped employees], and
may accept, hold, administer, and utilize gifts and bequests of personal property for
the purposes of aiding or facilitating the work of the Court. Gifts or bequests of
money to the Court will be covered into the Treasury.105

These provisions permit the Court wide latitude in obtaining and maintaining a high
quality workforce. These provisions also permit the Court to use voluntary services and
gifts, which Executive Branch agencies generally are not permitted to do.


SEAL: The Court should have a seal that is judicially noticed.106


        B.       JURISDICTION AND APPELLATE REVIEW
JURISDICTION: The Court would perform the first step in the judicial review
process of final administrative decisions by the Commissioner of the Social Security

105
   These provisions are identical to the provisions for the Veterans Court. 38 U.S.C. § 7281.
106
   This provision is identical to the provisions for the Tax Court and Veterans Court. 26 U.S.C. § 7444(a),
38 U.S.C. § 7254(a).


                                                    27
Administration (“SSA”) of Social Security Act benefits claims upon appeal by
benefits claimants who received adverse decisions. The Court would have exclusive
jurisdiction to review the final administrative decisions by the SSA Commissioner of
Social Security Act benefits claims arising from the old-age, survivors, and disability
insurance programs under Title II107 and the supplemental security income
program under Title XVI108 of the Social Security Act. The SSA Commissioner may
not seek initial judicial review by the Court of any of the SSA Commissioner’s final
administrative decisions of disability benefits claims.109 The Court would have
power to affirm, modify, or reverse a SSA decision, vacate and remand an SSA
decision to the SSA, or dismiss an appeal to the Court.

The Social Security Act section regarding judicial review of SSA’s final administrative
decisions, 42 U.S.C. § 405(g), would require amendment to substitute the Court for the
United States District Courts.

The Court’s jurisdiction would not extend to initial judicial review of the final
administrative decisions by the Secretary of the Department of Health and Human
Services (“DHHS”) of Medicare, Medicaid and other federal health care enforcement
proceedings brought under the Social Security Act and other applicable statutes. Such
enforcement proceedings currently are heard on administrative appeal by ALJs within the
Civil Remedies Division of the DHHS Departmental Appeals Board that administratively
is within the Office of the DHHS Secretary, with final administrative decision-making
authority vested in the DHHS Secretary.110

Barring the SSA Commissioner from seeking judicial review of the Commissioner’s own
final disability benefits decisions is a continuation of the current procedure. The Social
Security Act does not authorize the SSA Commissioner to appeal the Commissioner’s
disability decisions to court for review, just as the Secretary of the Veterans
Administration is barred from appealing the decisions of the Secretary’s Board of
Veterans' Appeals.111



107
    42 U.S.C. §§ 401 et seq.
108
    42 U.S.C. §§ 1381 et seq.
109
    This provision is the same as that for the Veterans Court. 38 U.S.C. § 7252(a). The Social Security Act
currently does not authorize the SSA Commissioner to appeal the Commissioner’s final disability decisions
to court for review. 42 U.S.C. § 405(g).
110
    SSA’s Official Internet Site for the Civil Remedies Division of the DHHS Departmental Appeals Board,
at http://www.dhhs.gov/dab/civil/. Social Security Act enforcement proceedings for civil money penalties,
assessments and exclusions from program participation are brought by CMS, the DHHS Office of Inspector
General, or SSA Office of Inspector General. The scope of the Social Security Act civil remedies cases
that may be sought by CMS or the DHHS or SSA Offices of the Inspector General, jurisdiction over the
appeals from which is vested in the ALJs within the Civil Penalties Division, is stated in 20 C.F.R. §
498.100, 42 C.F.R. §§ 402.1, 1003.100, 1005.2(a), 20 C.F.R. Part 498, and 42 C.F.R Parts 498, 1001, 1003,
and 1004. The ALJs within the Civil Penalties Division also have jurisdiction over civil remedies case
appeals for violations of statutes other than the Social Security Act, which are listed at
http://www.dhhs.gov/dab/appellate/regulations.html.
111
    38 U.S.C. § 7252(a), 42 U.S.C. § 405(g).


                                                    28
STANDARD AND SCOPE OF APPELLATE REVIEW:

Standard of Appellate Review: The appellate review by the Court of the findings of
fact in SSA’s final administrative decisions will continue to be subject to the
substantial evidence standard that is set forth in 42 U.S.C. § 405(g) of the Social
Security Act: the findings of fact by the SSA Commissioner are conclusive, if they
are supported by substantial evidence. Findings of fact made by the SSA
Commissioner will not be subject to a trial de novo by the Court. The Court will not
hold evidentiary hearings or trials. Review by the Court will be based on the record
of the proceedings before the SSA Commissioner. As part of the Commissioner's
answer to the appeal, the Commissioner will file a certified copy of the transcript of
the record including the evidence upon which the findings and decision complained
of are based. The court will have exclusive jurisdiction to address all relevant issues
of law, including the interpretation of constitutional, statutory, and regulatory
provisions.112 When a final benefits decision of the SSA Commissioner is adverse to
a party and the sole stated basis for the decision is the failure of the party to submit
proof in conformity with any applicable regulations prescribed by the SSA
Commissioner, the Court will review only the questions of conformity with and the
validity of such regulations.113

Oral Argument: Oral argument must be allowed in every case unless a judge who
has examined the briefs and record decides that oral argument is unnecessary
because the appeal is frivolous, the dispositive issue or issues have been
authoritatively decided, or the facts and legal arguments are adequately presented
in the briefs and record and the decisional process would not be significantly aided
by oral argument. The parties may agree to submit a case for decision on the briefs,
but the Court may direct that the case be argued.114 The Court will follow Rule 34
of the Federal Rules of Appellate Procedure (“FRAP”) regarding the holding of oral
arguments and FRAP Rules 28-32 regarding the briefing of cases. The Court may
prescribe additional rules of practice and procedure regarding oral argument and
briefing of cases that do not conflict with the FRAP Rules.

An opportunity for oral argument and full briefing of each case will afford a full and
dynamic airing of the issues on appeal that will not occur with just a review of the record
certified from SSA and briefs alone. Of the cases that the Veterans Court Judges hear,
only 1% include oral argument, which either occurs in Washington, D.C., or by telephone
conference call.115 This is because the statutes regarding the Veterans Court do not
address oral argument and the procedure for oral argument that was adopted by the
Veterans Court does not require it. Rule 34 of the Veterans Court 116states that “[o]ral

112
    These provisions are based upon those for the Veterans Court, 38 U.S.C. § 7252(b), and the Social
Security Act provision for judicial review of Social Security Act benefits claims, 42 U.S.C. § 405(g).
113
    This provision is identical to the Social Security Act provision for judicial review of Social Security Act
benefits claims, 42 U.S.C. § 405(g), and similar to but more specific than the provision for the Veterans
Court, 38 U.S.C. § 7261(d).
114
    These provisions are identical to those in FRAP Rule 34(a)(2) and 34(f).
115
    About the Court, supra note 73.
116
    Veterans Court Rule 34(a).


                                                      29
argument will be allowed only when ordered by the Court…. The Court may order oral
argument on its own initiative or on a party's motion…”

An example of an additional rule that the Court may adopt is setting limits on oral
argument time. The Notes of the Advisory Committee regarding FRAP Rule 34 state that

         A majority of circuits now limit oral argument to thirty minutes for each side,
         with the provision that additional time may be made available upon request. The
         Committee is of the view that thirty minutes to each side is sufficient in most
         cases, but that where additional time is necessary it should be freely granted on a
         proper showing of cause therefor. It further feels that the matter of time should be
         left ultimately to each court of appeals, subject to the spirit of the rule that a
         reasonable time should be allowed for argument. The term "side" is used to
         indicate that the time allowed by the rule is afforded to opposing interests rather
         than to individual parties. Thus if multiple appellants or appellees have a common
         interest, they constitute only a single side. If counsel for multiple parties who
         constitute a single side feel that additional time is necessary, they may request
         it.117

Closed Record on Appeal: The Court may not receive and consider additional
evidence outside of the record certified to the Court by the SSA, regardless of
whether the given case is before the Court on appeal from a final administrative decision
of the SSA Appeals Council under the current statutes and regulations, or on appeal from
a final administrative decision of an ALJ or, beginning in 2007, the SSA Decision
Review Board under the SSA Commissioner’s new regulations regarding the
Administrative Review Process for Adjudicating Initial Disability Claims.118 The Social
Security Act judicial review provision requires that a court receive new evidence
only when a claimant shows that there is material new evidence and there is good
cause for not including it in the record earlier, which then requires the court to
remand the case to SSA for consideration of the new evidence.119 However, there is
no statutory basis in the Social Security Act for the receipt and decision upon new
evidence at the first step of judicial review.

The current SSA regulations currently do not close or limit the record at any point in the
administrative adjudication process. Even at the final step of administrative review, the
Appeals Council engages in plenary review unless it says to the contrary.120 The SSA
regulations also state that “[w]e will consider at each step of the review process any
information that you present as well as all the information in our records.”121 “The
regulations further make clear that the [Appeals] Council will ‘evaluate the entire record,’
including ‘new and material evidence,” in determining whether to grant review.”122 The
117
    FRAP Rule 34, Notes of Advisory Committee
118
    71 Fed. Reg. 16424-14462 (final rule March 31, 2006).
119
    42 U.S.C. § 405(g).
120
    Sims v. Apfel, 530 U.S. 103, 120 S. Ct. 2080, 2085-2086, 147 L. Ed. 2d 80 (2000), citing, 20 C.F.R. §
404.975.
121
    20 C.F.R. § 404.900(b).
122
    Sims, 120 S. Ct. at 2086, quoting, 20 C.F.R. § 404.970(b).


                                                    30
reason the SSA keeps the record open is explained by the provision in the “judicial
review” section of the Social Security Act, which authorizes the remand of a case when a
claimant shows that there is material new evidence and there is good cause for not
including it in the record earlier.123 Given the existence of this provision, SSA’s closing
the record at any administrative step would lengthen the time it takes for the claimants to
get decisions because they would have to appeal for judicial review just to admit new
evidence, increase the number of appeals for judicial review, and increase the number of
court remands.

Under the Commissioner’s new disability process regulations, the record will be closed
when the ALJ decision is issued, regardless of whether it becomes the SSA
Commissioner’s final administrative decision.124 However, an ALJ may be requested by
a claimant to consider new evidence after the ALJ’s decision.125 The Commissioner’s
regulations of course do not affect the Social Security Act judicial review statute.

Appeal Conferences: The Court may hold conferences in a case to address any
matter that may aid in disposing of the case, including simplification of the issues
and discussions of settlement.126 The Court will follow FRAP Rule 33 regarding the
holding of conferences. The Court may prescribe additional rules of practice and
procedure regarding conferences that do not conflict with the FRAP Rules.

Scope of Appellate Review:
 (a) In any action brought before it, the Court, to the extent necessary to its decision
and when presented, will
  (1) decide all relevant questions of law, interpret constitutional, statutory, and
regulatory provisions, and determine the meaning or applicability of the terms of an
action of the SSA Commissioner;
  (2) compel action of the SSA Commissioner unlawfully withheld or unreasonably
delayed;
  (3) hold unlawful and set aside decisions, findings (other than those described in
clause (4) of this subsection), conclusions, rules, and regulations issued or adopted
by the SSA Commissioner that are found to be
    (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance
with law;
    (B) contrary to constitutional right, power, privilege, or immunity;
    (C) in excess of statutory jurisdiction, authority, or limitations, or in violation of
a statutory right; or
    (D) without observance of procedure required by law; and
  (4) in the case of a finding of material fact adverse to the claimant made in
reaching a decision in a case before the SSA with respect to benefits under laws
administered by the SSA Commissioner, hold unlawful and set aside or reverse such
finding, if the finding is not supported by substantial evidence.

123
    42 U.S.C. § 405(g).
124
    71 Fed. Reg. at 16453 (to be codified at 42 C.F.R. § 405.360).
125
    71 Fed. Reg. at 16454 (to be codified at 42 C.F.R. § 405.373).
126
    This provision is identical to that in FRAP Rule 33.


                                                     31
(b) In making its determinations, the Court will review the record of proceedings
before the SSA Commissioner and the briefs filed and oral argument by the parties
before the Court, and will take due account of the rule of prejudicial error.127


VENUE: A Social Security benefits claimant’s appeal should be filed in the
Regional Division of the Court in which the claimant resides or has his principal
place of business at the time the appeal to the Court is filed. If the claimant moves
his residence to the jurisdiction of another Regional Division of the Court after the
claimant’s appeal is filed and before oral argument is heard or before the case is
decided without oral argument, the claimant’s case should be transferred to the
Regional Division where the claimant moved for oral argument and/or decision,
unless the claimant or the claimant’s representative waives the change of venue. If a
claimant does not reside or have the claimant’s principal place of business within
the United States, the case should be filed in the Atlanta Regional Division of the
Court.


ISSUE PRECLUSION AND EXHAUSTION: The Court should not preclude
judicial review of issues that are not enumerated on appeal from a final decision of
the SSA Commissioner in order to preserve judicial review of the issues upon claims
for Title II and Title XVI Social Security Act benefits. The Court cannot require
issue exhaustion in SSA administrative appeals, unless and until the SSA
Commissioner adopts a regulation that requires issue exhaustion.

Preclusion of issues not specified in a notice of appeal to the Court is not appropriate,
given the informality of the adjudication process for Social Security Act benefits claims,
for the same reasons that the Supreme Court has stated that an issue exhaustion
requirement for SSA administrative appeals is not appropriate. As the Supreme Court
stated in Sims v. Apfel, there is no statute or regulation that requires a Social Security
benefits claimant to list the specific issues to be considered on an administrative appeal
on his request for review of an ALJ’s decision by the SSA Appeals Council in order to
preserve those issues for judicial review.128 Although agencies often issue “regulations to
require issue exhaustion in administrative appeals,”129 which are enforced by the courts
by not considering unexhausted issues, “SSA regulations do not require issue
exhaustion.”130 In Sims, the Supreme Court refused to impose a judicially inferred issue
exhaustion requirement in order to preserve judicial review of the issues upon a claim for
Title II and Title XVI Social Security Act benefits. The Supreme Court reasoned that the
issues in SSA hearings are not developed in an adversarial administrative proceeding and
the “[Appeals] Council, not the claimant, has primary responsibility for identifying and

127
    These provisions are adapted from similar provisions for the Veterans Court but using the Social
Security standard of review, 38 U.S.C. § 7261(a)-(b).
128
    Sims, 530 U.S. at 108.
129
    Id.
130
    Id.


                                                    32
developing the issues.”131 The Supreme Court added that “we think it likely that the
Commissioner could adopt a regulation that did require issue exhaustion.”132

Accordingly, although the statute that creates the Court could require preclusion of issues
that are not enumerated on appeal, or the Court could issue a procedural rule under its
rulemaking authority that requires issue preclusion on appeal, the Supreme Court’s
compelling rationales in Sims in the context of the administrative adjudication process for
not requiring issue exhaustion in the absence of adversarial administrative hearings and
proceedings are equally compelling for the first level of judicial review. While many
Social Security benefits claimants now have representation, they often are represented by
non-attorneys, and about 15% of claimants are unrepresented. Expecting the elderly and
disabled to bear the burden of preserving specific legal issues for judicial review does not
comport with a sense of fair play and keeping the Social Security claims process
claimant-friendly.


JUDICIAL REVIEW OF COURT DECISIONS: The United States Courts of
Appeals, other than the United States Court of Appeals for the Federal Circuit, will
have exclusive jurisdiction to review the decisions of the Court in the same manner
and to the same extent as decisions of the District Courts in civil actions that are
tried without a jury. The appeal will be as of right. The judgment of any such court
will be final, except that it shall be subject to review by the Supreme Court of the
United States upon certiorari.133

The appeals from the Court should be to the regional Circuit Courts of Appeal, as appeals
from the District Court decisions of Social Security Act benefits claims now are, rather
than to the D.C. Circuit or the Federal Circuit. The Verkuil Lubbers report recommended
appellate review by the regional circuits to continue the diversity on questions of law,134
which also is discussed above in regard to the ABA Report.135 However, there also is the
practical consideration that the size of this appellate caseload would overwhelm the D.C.
or Federal Circuit.

Placing all of the Circuit-level Social Security benefits claims appeals in either the D.C.
Circuit or the Federal Circuit would either nearly double the D.C. Circuit’s caseload or
increase the Federal Circuit’s caseload by about 50%. During the years ending March 31,
2004, and March 31, 2005, respectively 768 and 690 Social Security cases were filed
with the regional Circuit Courts of Appeals, among the total of 45,769 and 47,094 cases
of all types combined that were filed.136 During the years ending March 31, 2004, and


131
    Id. at 112.
132
    Id. at 108.
133
    This provision is similar to the provision for the judicial review of Tax Court decisions. 26 U.S.C. §
7482(a).
134
    Verkuil and Lubbers, supra note 36, at 66.
135
    See supra text at notes 52-58.
136
    Judicial Business of the United States Courts:, 2005 Annual Reports of the Director, at Table B-7,
available at http://www.uscourts.gov/judbus2005/contents.html; Judicial Business of the United States


                                                     33
March 31, 2005, respectively only 1,515 and 1,637 cases of all types combined were filed
with the Federal Circuit.137 During the years ending March 31, 2004, and March 31,
2005, respectively only 705 and 851 cases of all types combined were filed with the D.C.
Circuit Court of Appeals.138 Thus, adding the Social Security Act benefits appeals
caseload to the docket of either the D.C. Circuit or the Federal Circuit would overwhelm
these courts.

Also, keeping appellate review in the regional Circuit Courts allows regional access to
the claimants. Both appeals from Bankruptcy Court decisions, after District Court
review, and Tax Court decisions are appealed to the regional Circuits, which makes sense
since the Bankruptcy and Tax Courts also serve individual claimants throughout the
country who often have limited means. (Although the Tax Court is based in Washington,
D.C., it sits throughout the country.)


        C.       STATUS AS A COURT OF LAW OF THE JUDICIAL
                 BRANCH OR EXECUTIVE BRANCH
STATUS OF THE COURT: The Court would be a court of record established
under Article I of the Constitution of the United States. The Court preferably
would be a “court of law” placed within the Judicial Branch to assure the
independence of the Court. However, Congress has placed most of the Article I
courts within the Executive Branch. If the Court is placed within the Executive
Branch, the Court should be designated expressly as a “court of law.” If the Court
is placed within the Executive Branch, the Court also should be designated as an
“independent establishment” of the Executive Branch as is defined in 5 U.S.C. § 104.
If the Court is placed within the Executive Branch, in order to provide the Court
with a degree of independence similar to what the Court automatically would have
if it were placed within the Judicial Branch, the Court should be created as a “court
of law” with all of the attributes of independence of an Executive Branch
“independent regulatory agency.”

Court of Law: Regardless of whether the Court is placed in the Judicial or Executive
Branch, the Court must be designated expressly by statute as a “court of law” so that,
among other things, its principal officers, the judges who in turn will serve as the Chief
Judge, unambiguously have the power to appoint inferior officers pursuant to the
Appointments Clause of the Constitution. Making sure the Chief Judge of the Court is
empowered to appoint inferior officers is essential to the Chief Judge’s ability to appoint
the inferior officers needed to assist in running the Court.
The Appointments Clause provides in pertinent part:



Courts: 2004 Annual Reports of the Director, Table B-7, available at
http://www.uscourts.gov/judbus2004/contents.html.
137
    Id. at Tables B-8.
138
    Id. at Tables B-7.


                                                   34
         [The President] shall nominate, and by and with the Advice and Consent
         of the Senate, shall appoint Ambassadors, other public Ministers and
         Consuls, Judges of the supreme Court, and all other Officers of the United
         States, whose Appointments are not herein otherwise provided for, and
         which shall be established by Law: but the Congress may by Law vest the
         Appointment of such inferior Officers, as they think proper, in the
         President alone, in the Courts of Law, or in the Heads of Departments.139

While courts placed within the Judicial Branch always are designated by
Congress as courts of law, Congress has not always done so for the Article I
courts that it has placed within the Executive Branch, which has caused confusion
as to what the courts are and whether they have the power to appoint inferior
officers.

For example, because the statutes that created the Tax Court and placed it in the
Executive Branch are silent whether it is a court of law or an Executive Branch
department, the Supreme Court in Freytag had to address the issue of whether the
Tax Court was empowered to appoint inferior officers. In Freytag, after the
Supreme Court found that the special trial judges employed by the Tax Court are
judicial officers who are inferior officers,140 the Supreme Court held that all
inferior officers must be appointed by the President, courts of law, or heads of
departments, and Congress does not have discretion to mandate another
appointment method.141 “Heads of departments” was posited rather narrowly to
include heads of cabinet departments, by limiting the definition of “department“
to the fourteen executive departments that are listed in 5 U.S.C. § 101 (State,
Treasury, Defense, Justice, Interior, Agriculture, Commerce, Labor, Health and
Human Services, Housing and Urban Development, Transportation, Energy,
Education, and Veterans Affairs). However, the Court also said that the

139
    U.S. CONST., art. II, § 2, cl. 2.
140
    The four most recent Supreme Court Appointments Clause cases regarding judicial officers, starting
with Freytag, follow a two step analysis. The first question is whether the judicial officer is a mere
employee or an inferior officer who must be appointed pursuant to the Appointments Clause. So far, all
judicial officers have been held to be inferior officers. The second question is whether judicial officers, as
inferior officers, were appointed by an authorized court of law or head of a department. Edmond v. United
States, 520 U.S. 651 (1997) (civilians who are military judges of the Article I trial and appellate military
courts of the three military departments and Coast Guard in the Executive Branch, specifically here the
Coast Guard Court of Criminal Appeals, are inferior officers); Ryder v. United States, 515 U.S. 177 (1995)
(civilians who are military judges of the Article I trial and appellate military courts of the three military
departments and Coast Guard in the Executive Branch, specifically here the Coast Guard Court of Military
Review, are inferior officers); Weiss v. United States, 510 U.S. 163 (1994) (commissioned officers who are
military judges of the Article I trial and appellate military courts of the three military departments and
Coast Guard in the Executive Branch, specifically here the Navy-Marine Corps Court of Military Review,
are inferior officers); Freytag v. Commissioner of Internal Revenue, 501 U.S. 868 (1991) (special trial
judges of the Executive Branch Article I Tax Court are inferior officers). But cf. Landry v. FDIC, 204 F.3d
1125, 1133-1134 (D.C. Cir. 2000), cert. den., 531 U.S. 924 (2000) (finding on the first question that
Federal Deposit Insurance Corporation (“FDIC”) ALJs, who are Executive Branch quasi-judicial officers,
are “mere employees,” rather than “inferior officers,” because they were authorized to only recommend
decisions to the FDIC Board of Directors but not issue final agency decisions).
141
    Freytag, 501 U.S. at 877-81.


                                                     35
Appointments Clause is not so strictly limited by its terms and left the door open
for possible later approval of inferior officer appointments by heads of principal
agencies.142

The Supreme Court in Freytag held, 5 to 4, that the Tax Court is a court of law
empowered to appoint special trial judges. The Supreme Court left open the issue of
whether an agency is a “department,” since a determination of the scope of the definition
of “department” was not essential to the holding that the Tax Court is a court of law.143
However, four of the Justices stated in their concurring opinion that the Tax Court is a
department of the Executive Branch144 and that "department" should be construed more
broadly as a separate executive organization run by a principal officer.145 The concurring
justices’ standard appears to be more in accord with both the Constitutional term of
“department,” which is not limited to any specific class of Executive Branch departments,
and the Administrative Procedure Act standard of an agency being any federal authority
with the power to issue final administrative decisions.146

In addition, Congress clearly states in the following other statutes that there are
“departments” in the Executive Branch other than the “executive departments”
enumerated in 5 U.S.C. § 101: Congress defined “federal agency” for the purposes of the
statute on the federal agencies’ use of passenger carriers to include “(A) a department (as
such term is defined in section 18 of the Act of August 2, 1946 (41 U.S.C. 5a)), (B) and
Executive department (as such term is defined in section 101 of Title 5)”147 Section 18 of
the Administrative Expenses Act of 1946, 41 U.S.C. § 5a, provides that “‘department’ as
used in this Act shall be construed to include independent establishments [and] other
agencies.”148

Accordingly, a Freytag-type controversy may be avoided for an Executive Branch Social
Security Court simply by expressly designating it by statute as a court of law.


Independent Establishment within the Executive Branch: If the Court is placed
within the Executive Branch, designation of the Court as an “independent establishment”
is necessary to expressly state where the new agency fits in the Executive Branch
structure described in Title 5. For the purposes of Title 5, entitled “Government
Organization and Employees,” the Executive Branch consists of: (1) the fourteen
“executive departments” that are listed in 5 U.S.C. § 101, (2) the three “military

142
    Id. at 886.
143
    Id. at 882-91.
144
    Id. at 901-21. Whether the Article I court that Congress created as the Tax Court is a court of law or an
Executive Branch department/agency was and is a close question. Of the four justices in Freytag who
thought that the Tax Court is an Executive Branch department, three still are on the Court: Scalia, Kennedy,
and Souter. Of the five who said it is a court of law, Blackmun, Rehnquist, White, Marshall, and Stevens,
only Stevens remains.
145
    Id. at 919-21.
146
    Administrative Procedure Act § 1, 5 U.S.C. § 551(1).
147
    31 U.S.C. § 1344(g)(2)(A)-(B).
148
    Administrative Expenses Act of 1946, § 18, 41 U.S.C. § 5a.


                                                     36
departments” listed in 5 U.S.C. § 102 (Army, Navy, and Air Force), (3) “government
corporations” and “government controlled corporations,” which are defined in 5 U.S.C. §
103, and (4) “independent establishments,” which are defined in 5 U.S.C. § 104 as “an
establishment in the executive branch…which is not an Executive department, military
department, Government corporation, or part thereof, or part of an independent
establishment.” “‘Executive agency’ means an Executive department, a Government
corporation, and an independent establishment.”149 Thus, Executive Branch entities such
as courts of law and independent regulatory agencies are “independent establishments.”


Attributes of Independence of an Executive Branch Independent Regulatory Agency
for an Executive Branch Court: If the Social Security Court is placed within the
Judicial Branch, the Court would be and function as an independent court. If the Court is
placed within the Executive Branch, creation of the Court with all of the attributes of
independence of an Executive Branch independent regulatory agency is essential in order
to (1) provide the Court with a degree of independence similar to what the Court would
have if it were placed within the Judicial Branch, and (2) have the Court be accountable
only to Congress and the President.

The phrase “independent regulatory agency” is the technical phrase for an agency that
Congress makes independent of the usual degree of Executive Branch oversight, and does
not mean that such an agency necessarily regulates conduct or benefits programs.
Congress created the Occupational Safety and Health Review Commission
(“OSHRC”)150 and (2) Federal Mine Safety and Health Review Commission
(“FMSHRC”)151 as exclusively adjudicatory agencies that are outside of the Labor
Department and as independent regulatory agencies.152 Examples of independent
regulatory agencies that Congress has created within existing Executive Branch agencies
to perform adjudications, among other things, include the (1) Federal Energy Regulatory
Commission (“FERC”) within the Department of Energy, and (2) Surface Transportation
Board (“STB”) within the Transportation Department. The STB replaced and took over
the functions of the Interstate Commerce Commission (“ICC”).153 The only statutory list
of the independent regulatory agencies appears in a statute that addresses federal
information policy and includes OSHRC, FMSHRC, FERC and the ICC, but does not
define what an independent regulatory agency is.154

Attributes of independence that an Executive Branch independent regulatory agency may
have include protections against arbitrary removal of officers from office by the
President, independent control over setting and submitting its budget to Congress without
review or revision within the Executive Branch, the exclusive power to administer itself,

149
    5 U.S.C. § 105.
150
    29 U.S.C. § 661.
151
    30 U.S.C. § 823.
152
    44 U.S.C. § 3502(5); Characteristics of Independent Executive Agencies, Congressional Research
Service CRS-1-CRS-9 at CRS-1, n. 1 (July 25, 1996), (statement by Rogelio Garcia to House
Subcommittee on Social Security).
153
    44 U.S.C. § 3502(5); 49 U.S.C. §§ 701(a), 702, 703(c).
154
    44 U.S.C. § 3502(5).


                                                  37
the exclusive power to expend its funds, the exclusive power to set its rules and
procedures, and the power to directly submit communications and information to
Congress and publish communications and information without prior review by the
Office of Management and Budget.

Congress created the Veterans Court as an Executive Branch Article I court with all of
the attributes of an independent regulatory agency to provide claimants for veterans
disability benefits with independent judicial review of the Veterans Administration’s
determinations of disability claims.155 Congress formed the Board of Tax Appeals, which
later became the Tax Court, to provide an Executive Branch tribunal that is independent
of the IRS to hear taxpayers’ appeals from tax deficiency notices before payment of the
tax because of the inherent unfairness to taxpayers of having the same agency that
investigates and prosecutes cases also perform appellate review.156 The Armed Forces
Court, which is located within the Defense Department for administrative purposes
only,157 does not appear to have been enacted with many of the attributes of an
independent regulatory agency.158 The Federal Claims Court is within the Judicial
Branch.

The remainder of section C states how to provide an Executive Branch Social Security
Court with the approximate degree of independence that the Court automatically would
have if it were placed within the Judicial Branch.


REMOVAL FROM OFFICE: A judge of the Court may be removed from office by
the President for inefficiency, ineligibility, neglect of duty, malfeasance in office, or
engaging in the practice of law, or, in the case of a Chief Judge, for appointing or
promoting an official or employee on the basis of a political test or qualification, but
for no other cause. Before a judge may be removed from office, the judge will be
provided with a notice that includes a full specification of the reasons for the
removal and an opportunity for a public hearing.

To assure the Court’s independence, the Court will not be under the direction and control
of the President or any other Executive Branch official outside of the Court. Therefore,
in the absence of cause, the President may not remove the judges, who are the principal
officers of an agency that is not under his direction and control. Restricting the
President’s ability to arbitrarily remove the appointed principal officers is a primary
characteristic of an independent agency, so that the officers are not subject to “at will”
removal for political or other reasons.159



155
    38 U.S.C. §§ 7281, 7282, 7287.
156
    Richard L. Revesz, Specialized Courts and the Administrative Lawmaking System, 138 U. PA. L. REV.
1111, 1112 n.9, 1118-1119 (1990) (quoting, Report of Tax Simplification Board: Hearing on H.R. REP. NO.
68-103, at 4 (1st Sess. 1923).
157
    10 U.S.C. § 941.
158
    10 U.S.C. §§ 941-946.
159
    Garcia, supra note 152, at CRS-1.


                                                  38
The provision is modeled on similar provisions of nearly twenty courts and independent
agencies, and includes all of the grounds for removal that appear in the provisions.
Examples include the Tax Court,160 Veterans Court,161 Federal Claims Court,162 Armed
Forced Court,163 OSHRC,164 FMSHRC,165 and SSA.166 The requirement of notice and an
opportunity for a public hearing is modeled on the removal provisions for the Tax Court
and Veterans Court judges.167 Over one dozen independent agencies’ statutes have no
removal provision, but Supreme Court rulings bar removal of “members of a body
created to exercise purely adjudicatory functions that are not subject to review by any
other executive branch official.”168 Mental or physical disability is addressed in the
retirement benefits provisions.


DISBARMENT OF REMOVED JUDGES: A judge of the Court who is removed
from office by the President should not be permitted at any time to practice before
the Court.169


INDEPENDENT BUDGET AND AUTHORIZATION OF APPROPRIATIONS:
The Chief Judge shall prepare an annual budget for the Court for inclusion in the
budget of the President for each fiscal year, which shall be included in that budget
and submitted by the President to the Congress without review or revision within
the Executive Branch. Appropriations requests for staffing and personnel of the
Court should be based upon a comprehensive work force plan, which shall be
established and revised from time to time by the Chief Judge. Appropriations for
administrative expenses of the Court should be authorized to be provided on a
biennial basis.

The degree of independence that an Executive Branch court of law or agency has is
affected by the degree of control that it has in preparing and submitting its budget
requests to Congress. Budget requests usually are changed by the Office of Management
and Budget (“OMB”), but Congress can permit agencies to submit their budgets without
revision. Congress also can provide that the President submit an agency’s budget without
revision “together with the President's annual budget for the agency,” so that the
Appropriations Committees can compare the agency budget with the OMB proposed

160
    26 U.S.C. § 7443(f).
161
    38 U.S.C. § 7253(f).
162
    28 U.S.C. § 176. Removal of a Federal Claims Court Judge is effected by the United States Court of
Appeals for the Federal Circuit, which is appropriate for this Judicial Branch court, but not for an Executive
Branch court such as the Social Security Court will be.
163
    10 U.S.C. § 942(c).
164
    29 U.S.C. § 661(b).
165
    30 U.S.C. § 823(b)(1)(B).
166
    42 U.S.C. § 902(a)(3). Only the Tennessee Valley Authority allows removal for political impropriety.
Garcia, supra note 152, at CRS-4, n. 11.
167
    26 U.S.C. § 7442(f), 38 U.S.C. § 7253(f).
168
    Garcia, supra note 152, at CRS-3-CRS-5.
169
    The Tax Court and Federal Claims Court have disbarment provisions, 26 U.S.C. § 7443(c), 28 U.S.C. §
177, but the Veterans Court does not, 38 U.S.C. § 7251 et seq.


                                                     39
revisions. The proposed provision for the Court that bars OMB from submitting
revisions of the Court’s budget requests would maximize the Court’s independence
within the Executive Branch170 and is the same provision as Congress enacted for the
Veterans Court171 and the U.S. International Trade Commission.172 The provision also is
based in part upon the budget provisions for the SSA and U.S. Postal Service as
independent agencies, which require budget submission without revision, but permit the
President also to submit his recommendations, among other budget provisions.173


ADMINISTRATION OF THE COURT: Notwithstanding any other provision of
law, the Court may exercise, for purposes of management, administration, and
expenditure of funds of the Court, the authorities provided for such purposes by
any provision of law, including any limitation with respect to such provision of law,
applicable to a court of the United States as that term is defined in 28 U.S.C. § 451,
except to the extent that such provision of law is inconsistent with a provision of the
statutes that create the Court.174

To assure the Court’s independence, the Court requires the authority to self-administer.


EXPENDITURES: The Court should be authorized to make such expenditures
(including expenditures for personal services and rent at the seat of Government
and elsewhere, and for law books, books of reference, and periodicals) as may be
necessary to execute efficiently the functions vested in the Court. Except as
provided elsewhere regarding the expenditure of practice and registration fees that
are collected from practitioners admitted to practice before the Court, all
expenditures of the Court shall be allowed and paid out of moneys appropriated for
purposes of the Court upon presentation of itemized vouchers signed by the
certifying officer designated by the Chief Judge for each of the Regional
Divisions.175

To assure the Court’s independence, the Court requires the authority to expend funds to
carry out its business.


RULEMAKING; RULES OF PRACTICE AND PROCEDURE: The Court should
have the exclusive power to prescribe such rules of practice and procedure and




170
    Garcia, supra note 152, at CRS-5-CRS-8.
171
    38 U.S.C. § 7282(a).
172
    19 U.S.C. § 2232.
173
    42 U.S.C. § 904(b), 39 U.S.C. § 2009.
174
    This provision is identical to that for the administration of the Veterans Court. 38 U.S.C. § 7287.
175
    This provision is similar to those for the Tax Court, 26 U.S.C. § 7472, and Veterans Court, 38 U.S.C. §
7282(b)-(c).


                                                    40
other regulations as it deems necessary or appropriate to carry out its functions. 176
The rules should be known as the “Rules of Practice and Procedure of the United
States Social Security Court.” The Court cannot have the authority to issue rules
regarding the policies or administration of the Social Security Act programs, which
is the province of the SSA Commissioner. Regardless of whether the Court is placed
in the Executive or Judicial Branch, the rules and regulations of the Court should be
promulgated by the Chief Judge pursuant to public notice and comment provisions
that are similar to those set forth in 5 U.S.C. § 553 of the Administrative Procedure
Act. However, the Court should not be required to adopt changes based upon the
comments or to provide an opportunity for a hearing on the record akin to the
provisions in 5 U.S.C. §§ 556-57 of the Administrative Procedure Act in order to
issue rules and regulations. The propriety of the Court’s rules and regulations
should not be subject to judicial review.

To assure the Court’s independence, the Court requires the authority to issue regulations
regarding its self-administration. However, the Court will not have authority to issue
rules regarding the policies or administration of the Social Security Act programs, which
is the province of the SSA Commissioner. The proposal does not require the Court to
provide an opportunity for a hearing on the record in order to issue rules because of the
Court’s limited rule making power.

The Administrative Procedure Act (“APA”), which sets forth the requirements for
promulgating rules and regulations and holding hearings on the record,177 cannot apply to
the Court’s rule making power, regardless of whether the Court is placed in the Judicial
or Executive Branch. The APA’s applicability to federal “agencies” expressly does not
include “the courts of the United States.”178 The legislative history of the APA shows
that the APA definition of “agency” excludes not only all Article III courts and Article I
tribunals in the Judicial Branch, but also all Executive Branch Article I tribunals that
perform judicial review of final administrative agency adjudications and Executive
Branch Article II tribunals that review initial administrative agency adjudications and are
labeled “courts” by Congress. Current examples of Article I tribunals that are within the
Judicial Branch include the Territorial Courts, U.S. Court of Federal Claims, and U.S.
Bankruptcy Courts and Bankruptcy Appellate Panels as units of the District Courts.
Current examples of Article I tribunals that are outside the Judicial Branch and are in the
Executive Branch include the United States Tax Court, the U.S. Court of Appeals for
Veterans Claims, and the U.S. Court of Appeals for the Armed Forces. The U.S. Tax
Court was an Executive Branch Article II court until it was converted into an Executive
Branch Article I court in 1969.179


176
    These provisions are similar to those for the Armed Forces Court, 10 U.S.C. § 944, Tax Court, 26
U.S.C. § 7453, Federal Claims Court, 28 U.S.C. § 2503(b), Veterans Court, 38 U.S.C. § 7264, STB, 49
U.S.C. § 703(e), and OSHRC, 29 U.S.C. § 661(g).
177
    5 U.S.C. § 551-559.
178
    5 U.S.C. § 551(1).
179
    Robin J. Arzt, Recommendations for a New Independent Adjudication Agency to Make the Final
Administrative Adjudications of Social Security Act Benefits Claims,” 23 J. Nat’l Ass’n Admin. L. Judges
267, 328-334 (Fall 2003).


                                                   41
Promulgation of the Court’s rules and regulations is recommended because the wide
public interest in the adjudication process of Social Security benefits claims warrants
affording the Court the benefit of the many and diverse stakeholders’ points of view of
the impact of the rules and regulations on the claimants who appear before the Court and
SSA.

Rules of evidence need not be prescribed, since the Court will not be holding evidentiary
hearings or trials.


DIRECT TRANSMITTALS TO CONGRESS AND PUBLICATION OF
REPORTS: If the Court is placed within the Executive Branch, the Court will
transmit to Congress and the President copies of budget estimates, requests
including personnel needs, information, legislative recommendations, prepared
testimony for Congressional hearings, and comments on legislation. An officer of an
agency, including the OMB, may not impose conditions on or impair
communications by the Court with Congress, or a committee or Member of
Congress.180

The Court annually will transmit to the President, the Committee on Finance of the
Senate and its Subcommittee on Social Security and Family Policy, and the
Committee on Ways and Means of the House of Representatives and its
Subcommittee on Social Security quarterly and annual reports that include (1) a
comprehensive survey of the operation and activities of the Court, (2) information
on the number, claim type, age, and status of pending cases, and number, claim
type, disposition time, and type of resolution of cases closed during the report
period, (3) recommendations that relate to amendments to the statutes that relate to
the Court, and (4) recommendations that relate to any other matter the Court
considers appropriate. The Court will provide for the publication of its reports on
the Court’s website and at the Government Printing Office in such form and
manner as may be best adapted for public information and use, and such authorized
publication shall be competent evidence of the reports of the Court without any
further proof or authentication thereof. The reports of the Court will be subject to
sale by the Government Printing Office in the same manner and upon the same
terms as other public documents.181

The degree of independence that an Executive Branch entity has is affected by whether it
must clear its communications and information that it wishes to submit to Congress with
OMB before contacting Congress.182



180
    This provision is modeled on the provisions for the Surface Transportation Board. 49 U.S.C. §§ 703(g),
704.
181
    This provision is modeled on those for the Armed Forces Court, Tax Court, and Surface Transportation
Board. 10 U.S.C. § 946, 26 U.S.C. § 7462, 49 U.S.C. §§ 703(g), 704. There is no provision that requires
the Veterans Court to publish reports regarding its pending cases and case dispositions.
182
    Garcia, supra note 152, at CRS-8-CRS-9.


                                                   42
         D.       JUDGES PAY AND BENEFITS
SALARY: Each judge of the Court should receive a salary at the same rate and in
the same installments as is received by judges of the United States District Courts.183


RETIREMENT BENEFITS AND SURVIVORS ANNUITIES FOR JUDGES: The
judges of the Court should have retirement benefits and survivors annuities that are
commensurate with those provided for the judicial officers of the other Article I
courts. The following provisions should be included, all of which have precedent in
the retirement benefits and survivors annuities provided for the judicial officers of
the other Article I courts. Judges of the Court who complete a 15 year term of
service at any age becomes entitled to an annuity equal to 100 percent of his or her
final salary. The pension and survivors’ annuities should include cost of living
increases that are not capped at the current salary level. The judges should not be
required to contribute toward the cost of the pension or survivors’ annuities. There
should be provisions for disability retirement, a reduced annuity on a pro rata basis
when there is less than 15 years of service, and continuation after retirement of
health insurance coverage within the Federal Employee Health Benefits program.
A fund known as the Social Security Court Retirement Fund should be established
in the Treasury similar to those established for the Veterans Court judges,184
Federal Claims Court judges,185 and Bankruptcy Judges and United States
Magistrates.186 A fund known as the Social Security Court Survivors' Annuities
Fund should be established in the Treasury similar to those established for the Tax
Court judges187 and Federal Claims Court judges, Bankruptcy Judges and United
States Magistrates.188 The amounts required to reduce to zero the unfunded
liability of the Social Security Court Retirement Fund and Social Security Court
Survivors' Annuities Fund should be authorized to be appropriated to the Funds.
Any legislation for enactment also should state that there are authorized to be
appropriated such sums as may be necessary to carry out this section.189

In summary, five groups of Article I federal judicial officers have pension plans that
provide for annuities equal to 100 percent of their final salary after 10 to 15 years of
service and upon reaching a certain age between 65 and 70. However, one other group of
Article I federal judicial officers has a pension plan that provide for an annuity equal to

183
    This is the rate of pay for the Tax Court Judges, 26 U.S.C. § 7443(c), Federal Claims Court Judges, 28
U.S.C. § 172(b), and Veterans Court Judges, 38 U.S.C. § 7253(e). The rate of salary and frequency of
installments is specified in 5 U.S.C. § 5505 and 28 U.S.C. § 135. The rate of pay for the Armed Forces
Court judges is the same rate as for the judges of the United States Courts of Appeals. 10 U.S.C. § 942(d).
184
    38 U.S.C. § 7298.
185
    28 U.S.C. § 178(l)
186
    28 U.S.C. § 377 (o).
187
    26 U.S.C. § 7448(c).
188
    28 U.S.C. § 376(b).
189
    These provisions are the same as the one for the Federal Claims Court retirement fund to which the
judges of that court are not required to contribute. 28 U.S.C. §§ 178(l)(3)(A) and 178(l)(3)(C).


                                                    43
80 percent of their final salary and bases eligibility upon completion of 15 years of
service alone, regardless of age. The judges either contribute one percent of their salary
for no more than 15 years or are not required to contribute any funds. All of the plans
provide for survivors annuities. Some of the details of the plans are as follows.

Since 1989, a Veterans Court judge who reaches age 65 with 15 years of service, with a
decreasing amount of service required down to ten years upon reaching age 70, becomes
entitled to an annuity equal to the judge’s final salary.190 As is stated above, the term of
the appointment is 15 years.191 Veterans Court judges must contribute an additional one
percent of salary per annum for the full salary plan during their first 15 years of service
after election to participate in the plan.192 A judge may elect among this plan or either
CSRS or FERS, depending upon the plan to which he may be entitled. There is no early
retirement provision but the statute provides for disability retirement.193 There are
survivors’ annuities for a surviving spouse and surviving dependent children.194 Veterans
Court judges who elect to participate in the survivors’ annuity program must contribute
the same amount as Federal Claims Court judges are required to contribute to their plan:
2.2 percent of salary per annum and 2.2 percent of the retirement salary per annum.195

A Tax Court judge who reaches age 65 with 15 years of service, with a decreasing
amount of service required down to ten years upon reaching age 70, becomes entitled to
an annuity equal to the judge’s final salary.196 As is stated above, the term of the
appointment is 15 years.197 Tax Court judges are not required to contribute an additional
one percent of salary per annum for the full salary plan after election to participate in the
plan. A judge may elect among this plan or either CSRS or FERS, depending upon the
plan to which the judge may be entitled. There is no early retirement provision, but the
statute provides for a mandatory retirement age of 70, a reduced annuity on a pro rata
basis when there is less than 10 years of service, and disability retirement.198 There are
survivors’ annuities for a surviving spouse and surviving dependent children.199 A Tax
Court judge who elects to participate in the survivors’ annuity program is required to
contribute 3.5 percent of salary per annum and 2.2 percent of the retirement salary per
annum.200

Since 1990, a judge of the Federal Claims Court who reaches age 65 with 15 years of
service, with a decreasing amount of service required down to ten years upon reaching
age 70, becomes entitled to an annuity equal to the judge’s final salary.201 The term of

190
    38 U.S.C. § 7296(b).
191
    38 U.S.C. § 7253(c).
192
    38 U.S.C. § 7296(i)-(j).
193
    38 U.S.C. § 7296.
194
    38 U.S.C. § 7297.
195
    38 U.S.C. § 7297(c), 28 U.S.C. § 376(b)(1)(B).
196
    26 U.S.C. § 7447(b).
197
    26 U.S.C. § 7443(e).
198
    26 U.S.C. § 7447.
199
    26 U.S.C. § 7448.
200
    26 U.S.C. § 7448(c)(1).
201
    28 U.S.C. § 178(a).


                                                     44
the appointment is 15 years.202 These judges are not required to contribute toward the
cost of the annuity.203 A judge may elect among this plan or either CSRS or FERS,
depending which plan he may have been entitled to.204 There is no early retirement
provision, but the statute provides for a disability retirement.205 There are survivors’
annuities for a surviving spouse and surviving dependent children.206 Federal Claims
Court judges who elect to participate in the survivors’ annuity program are required to
contribute 2.2 percent of salary per annum and 2.2 percent of the retirement salary per
annum.207

Since 1988, a Bankruptcy Judge or U.S. Magistrate who reaches age 65 with 14 years of
service becomes entitled to an annuity equal to his or her final salary.208 If such a judge
has at least eight years of service and retires before age 65, he receives an annuity starting
at age 65 that is reduced by a formula.209 The eight and 14 year periods doubtless were
picked because these respectively are the length of a Magistrate's and Bankruptcy Judge's
term,210 if they are not reappointed. These judges must contribute an additional 1 percent
per annum for the full salary plan during their first 14 years of service.211 A judge may
elect among this plan or either CSRS or FERS, depending which plan he may have been
entitled to.212 The annuity includes cost of living increases, but the annuity may not
exceed the current salary for the position.213 There is no early retirement provision, but
the statute provides for a disability retirement.214 There are survivors’ annuities for a
surviving spouse and surviving dependent children.215 Bankruptcy Judges and U.S.
Magistrates who elect to participate in the survivors’ annuity program are required to
contribute 2.2 percent of salary per annum and 3.5 percent of the retirement salary per
annum.216

Since 1989, a judge of the U.S. Court of Appeals for the Armed Forces who completes a
15 year term of service at any age becomes entitled to an annuity equal to 80 percent of
his or her final salary.217 The term of the appointment is 15 years.218 A judge may elect
among this plan or either CSRS or FERS, depending which plan he may have been
entitled to.219 The statute does not have an early retirement provision, but allows full

202
    28 U.S.C. § 172(a).
203
    28 U.S.C. § 178(l)(3)(C).
204
    28 U.S.C. § 178(f).
205
    28 U.S.C. § 178.
206
    28 U.S.C. § 376.
207
    28 U.S.C. § 376(b)(1)(B).
208
    28 U.S.C. § 377(a).
209
    28 U.S.C. § 377(c).
210
    28 U.S.C. §§ 152(a), 631(e).
211
    28 U.S.C. § 377(j).
212
    28 U.S.C. § 377(f).
213
    28 U.S.C. § 377(e).
214
    28 U.S.C. § 377(d).
215
    28 U.S.C. § 376.
216
    28 U.S.C. § 376(b)(1).
217
    10 U.S.C. §§ 942(b), 945(a)(1), 945 (b).
218
    10 U.S.C. § 942(b)(2).
219
    10 U.S.C. §§ 945(a)(2)-(3), 945(i).


                                               45
retirement at any age, if the judge completes a 15 year term.220 There are survivors’
annuities for a surviving spouse and surviving dependent children.221 The judges are not
required to contribute toward the cost of the pension or survivors’ annuities.222 The
pension and survivors’ annuities include cost of living increases that are not capped at the
current salary level.223


SENIOR JUDGE STATUS; RECALL OF RETIRED JUDGES: The Court should
have provisions for its judges to take senior judges status and for the recall of
retired judges that are commensurate with those provided for the judicial officers of
all other Article I courts.224 Any judge of the Court who retires and becomes a
senior judge should not be counted as a judge for purposes of the number of
judgeships authorized for the court.225

In the event that Congress sets an upper bound for the size of the Court, permitting judges
to take senior status without counting as a judge in terms of the number of authorized
judgeships will permit the Court to have the benefit of senior judges’ services in addition
to a fully staffed Court.




220
    10 U.S.C. § 945(a)(1).
221
    10 U.S.C. §§ 945(d), 945(h).
222
    10 U.S.C. § 945(h).
223
    10 U.S.C. § 945(e).
224
    10 U.S.C. §§ 942(e); 26 U.S.C. § 7447(b)(4)-(c); 28 U.S.C. §§ 178(d)-(f); 38 U.S.C. §§ 7257, 7299 (the
Veterans Court does not have a senior judge program, but the statute permits the recall of retired judges).
225
    Only the Federal Claims Court statute specifies that “any judge who retires…shall not be counted as a
judge…for purposes of the number of judgeships authorized” for the court. 28 U.S.C. § 178(e)(2).


                                                    46