In Seila Law LLC v. Consumer Fin. Prot. Bureau, the Supreme Court found that a single director appointed by the President for a term and removable by the President only for “inefficiency, neglect of duty, or malfeasance in office,” violated the separation of powers clause. 140 S. Ct. 2183, 2191 (2020).
The Agency has finally come out with emergency instructions on how to process Appeals Council cases when the claimant raised an alleged Constitutional violation as found in Seila Law.
The Social Security Commissioner is a single director appointed by the President for a term and removable by the President only for “inefficiency, neglect of duty, or malfeasance in office, exactly the same as the CFPB commissioner.
Many social security representatives have been raising a Seila Law constitutional type violation at the Appeals Council since July 1, 2020. Our office has provided Seila Law violation language for representatives to include in their AC briefs. Many of you have taken us up on it and used our arguments. The Appeals Council has been tagging the cases in which a Seila Law violation has been alleged and holding those cases, until now.
On January 15, 2020 the Office of General Counsel issued Emergency Message EM-21002 which stated that all OHO, and OAO adjudicators and staff will continue processing claims using current policies and business processes without discussing or making any findings related to the Seila Law issue.
The Appeals Council has started to send out AC fully favorables, AC remands and AC denials which have language which skirts the issue of Seila Law. Their explanation or lack thereof will not be sufficient for the Federal Court. This issue is clearly going to be decided in the Federal Courts and probably by the Supreme Court.
If you alleged a Seila Law violation in an AC case, you will shortly be getting a decision. For a case with merits,there is no downside to appeal to Federal Court.
That's what we do, appeal to Federal Court. Partner with us by sending over your hearing and/or your AC denials. We will get the remand and send the case back to you.
Feel free to contact us with any questions.
