Social Security Rules Enabling Legislation

Recommendation 2. Congress should enact enabling legislation to clarify the U.S. Supreme Court’s authority to promulgate procedural rules for social security litigation. The Judicial Conference should authorize the appointment of a social security rules advisory committee, and the U.S. Supreme Court should approve a set of social security rules drafted by this committee.

The proliferation of inconsistent procedural rules for social security litigation results from a dearth of national procedural governance. Disability appeals are just that – appeals. The Federal Rules of Civil Procedure are designed for civil actions of first impression, and the processes they contemplate work poorly for cases better suited to appellate rules.

The case for a single, national set of rules for social security litigation is strong. The substance of these cases differs very little from one part of the country to the next. They emerge from a single, national administrative process, one that produces the same sort of record for review everywhere. Procedural needs rarely vary from one social security case to the next. There are a lot of these cases. During the twelve months that ended on September 30, 2014, petitioners filed 19,185 “general” habeas corpus petitions in the federal courts.677 _{This large}

chunk of the district court docket poses special procedural needs, and therefore a particular set of rules sensibly governs it.678 _{During the same time period, social security claimants filed 19,146}

appeals in district courts.679 _{In addition, the lawyers who litigate these cases often have a}

regional or even national practice. This institutional fact is certainly true of OGC, and it is often true of claimant representatives as well.

Finally, any marginal return from local experimentation with procedural governance for social security cases has long since disappeared. Districts have tinkered for long enough. At this

677 _{Table C-2A, U.S. District Courts – Civil Cases Commenced, by Nature of the Suit, During the 12-Month Periods}

Ending September 30, 2009 Through 2014.

678 _{E.g., Rules Governing Section 2254 Cases in the United States District Courts, at www.uscourts.gov.}

679 _{Table C-2A, U.S. District Courts – Civil Cases Commenced, by Nature of the Suit, During the 12-Month Periods}

Ending September 30, 2009 Through 2014.

point, the only conceivable beneficiaries of procedural localism are judges with idiosyncratic preferences, and they might be mistaken about the benefits their requirements ostensibly create. Localism creates inefficiency and detracts from the lawyer resources available for merits

briefing, and these judges may actually be making their own jobs harder.

As discussed below, we recommend that a uniform set of procedural rules replace the chaos of local rules, standing orders, and individual practices that presently govern social security litigation in the federal courts. More important than any particular rule, however, is the existence of an ongoing rulemaking process that can create and revise social security rules as procedural needs arise and change. The Rules Enabling Act delegates power to craft rules of practice and procedure to the Supreme Court. This power is then exercised through procedures crafted by the Judicial Conference of the United States.680 _{Congress should amend the Rules}

Enabling Act to clarify that this delegation of rulemaking power includes the power to craft social security rules. A committee authorized by the Judicial Conference would then shoulder an ongoing responsibility for these rules.

Five options exist for the promulgation of a uniform set of procedural rules for

social security litigation. First, the agency and/or a national claimant representative organization could market an agreed-upon set of best practices to individual judges, for adoption in case management orders or the like. This option is least promising. A judge-by-judge effort will almost certainly leave balkanized procedures in place, and the problem of procedural localism will persist.

A second option is a district-by-district approach. A district could adopt these

recommendations in a general order or as amendments to its local rules. Local rulemaking is

680 _{28 U.S.C. §§ 2072(a), 2073(a). The discussion that follows simplifies the rulemaking process to a certain extent.}

For its details, see, e.g., http://www.uscourts.gov/rules-policies/about-rulemaking-process/how-rulemaking-process- works.

preferable because it requires districts to solicit public input and cannot proceed entirely behind closed doors.681 _{Also, amendments to local rules require more process than general orders, and}

for this reason may prove more resistant to judicial whim. Finally, an individual judge will have less leeway to vary a practice when it is prescribed in a local rule instead of a standing order or the like. In the absence of either of amendments to the Federal Rules of Civil Procedure or legislation, the broad adoption of a set of model local rules is the best option.

A district-by-district effort at local rules amendment would prove laborious, and surely some districts might resist. A third option is for Congress simply to legislate the procedural rules applicable in social security cases. There is some precedent for this sort of lawmaking.682 _{It is}

an imperfect choice, however, because legislation without an ongoing committee responsible for amendments as the need arises would freeze the rules in time. If a rule proved problematic, or if a new rule were needed, Congress would have to pass another statute.

A fourth option is to amend the Federal Rules of Civil Procedure to include specialized provisions for social security cases where appropriate. The Rules Enabling Act prohibits a rule that would “abridge, enlarge, or modify any substantive right.”683 _{This limitation has disabled}

rule makers from crafting a heightened pleading standard for certain categories of claims, for example.684 _{The committees responsible for rules of procedure and practice, however, have}

appropriately recognized that certain areas of litigation simply have different procedural needs that do not implicate the contours of substantive rights. They have responded with appropriately tailored rules that account for these differences without privileging plaintiffs or defendants in any

681 _{FED. R. CIV. P. 83(a)(1).}

682 _{Congress legislated a set of habeas corpus rules in 1976, although their origin and its relationship with the}

ordinary rulemaking process is complicated. See generally Robert N. Clinton, Rule 9 of the Federal Habeas Corpus Rules: A Case Study on the Need for Reform of the Rules Enabling Acts, 63 IOWA L. REV. 15 (1977).

683 _{28 U.S.C. § 2042(b).}

684 _{David Marcus, The Past, Present, and Future of Trans-Substantivity in Federal Civil Procedure, 59 DEPAUL L.}

REV. 371, 414 (2010).

systematic fashion.685 _{Indeed, local rules are subject to Enabling Act limitations.}686 _{The many}

districts with social security-specific local rules have either gravely erred in their judgments that such rules are permissible, or the Enabling Act’s limits permit what we recommend here.

Nonetheless, we recommend a fifth option for a mundane but not unimportant reason. There is no obvious place to locate particularized social security rules in the Federal Rules of Civil Procedure, in part because they do not include provisions designed for the equivalent of appellate practice. Many existing rules would have to be amended, in ways that would change their character fundamentally. Rule 3, for example, presently reads, “a civil action is

commenced by filing a complaint with the court.”687 _{It has been amended only once since 1938,}

to adjust its style.688 _{To account for the recommendations proposed in this Report, Rule 3 would}

have to be revised to say something like, “Except in actions brought under 42 U.S.C. § 405(g), a civil action is commenced by filing a complaint with the court.” Adjustments to Rules 8, 12, 56, and others would be necessary as well. Rather than fill the Federal Rules with such clutter, the Supreme Court could approve an amendment to Rule 81(a) adding social security appeals to a list of actions to which the Federal Rules apply only to the extent consistent with a specialized procedural regime.

A social security rules advisory committee supervised by the Judicial Conference, with members appointed by the Chief Justice, should craft this specialized procedural regime. The benefits of such rulemaking are legion. They include the capacity to draw on empirical research to inform rule amendments; a process that invites robust participation from stakeholders; and a commitment to reasoned, expert deliberation. The Supreme Court might already have the

685 _{See, e.g., FED. R. CIV. PROC. 23.1; FED. R. APP. PROC. 13; id. 15.1.}

686 _{28 U.S.C. § 2071(a)-(b); 12 CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE & PROCEDURE § 3153 (updated}

2016).

687 _{FED.R.CIV.PROC. 3.}

688 _{FED.R.CIV.PROC. 3, Adv. Comm. Note.}

requisite rulemaking power under the Rules Enabling Act, and likewise the Judicial Conference might already have sufficient authority to create such a committee.689 _{To ensure that the}

Enabling Act’s “substantive right” limitation does not deter the Supreme Court or the Judicial Conference, however, Congress should amend the act to clarify that its delegation of rulemaking power includes the power to craft social security rules. Legislation enacted in 1964 to give the Court the power to craft bankruptcy rules offers a model.690 _{The Judicial Conference could then}

authorize the appointment of a social security rules advisory committee, and the Supreme Court could eventually approve a uniform set of rules for this litigation.