[Federal Register Volume 63, Number 87 (Wednesday, May 6, 1998)]
[Rules and Regulations]
[Pages 24927-24934]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-11945]
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SOCIAL SECURITY ADMINISTRATION
20 CFR Parts 404 and 416
RIN 0960-AE74
Federal Old-Age, Survivors, and Disability Insurance Benefits;
Supplemental Security Income for the Aged, Blind, and Disabled;
Organization and Procedures; Application of Circuit Court Law
AGENCY: Social Security Administration (SSA).
ACTION: Final rules.
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SUMMARY: These final regulations revise the current regulations
governing how we apply holdings of the United States Courts of Appeals
(circuit courts) that we determine conflict with our interpretation of
the Social Security Act or regulations in adjudicating claims under
title II and title XVI of the Social Security Act (the Act). The
regulations explain the new goal we have adopted to ensure that
Acquiescence Rulings (ARs) are developed and issued promptly and the
new procedures we are implementing to identify claims pending in the
administrative review process that might be affected by ARs.
EFFECTIVE DATES: These amendments are effective June 5, 1998.
FOR FURTHER INFORMATION CONTACT: Gary Sargent, Litigation Staff, Social
Security Administration, 6401 Security Boulevard, Baltimore, MD 21235,
(410) 965-1695 for information about these rules. For information on
eligibility or claiming benefits, call our national toll free number,
1-800-772-1213.
SUPPLEMENTARY INFORMATION: On January 11, 1990, (55 FR 1012) we
published final regulations, set out at 20 CFR 404.985 and 416.1485, to
implement a revised policy explaining how we apply circuit court
holdings that we determine conflict with our interpretation of the Act
or regulations to subsequent claims within that circuit involving the
same issue. Under those regulations, we prepare ARs which explain the
circuit court holdings and provide instructions to adjudicators, at all
levels of the administrative review process, on how to apply the
circuit court's holding to subsequent claims within the circuit
involving the same issue. Those regulations reflected the agency's
decision in 1985 to abandon its prior policy of applying circuit court
holdings that we determined conflicted with our interpretation of the
Act or regulations only to the named party or parties to the decision,
rather than to other cases pending in the administrative review process
involving the same issue or issues.
On July 2, 1996, we issued Social Security Ruling (SSR) 96-1p (61
FR 34470) clarifying and reaffirming the rules established in the 1990
regulations. Since that time, we have reviewed our rules and our
implementing procedures to determine what changes could be instituted
to further improve the acquiescence process. Based upon that review, on
September 18, 1997, we published at 62 FR 48963, proposed revisions to
the acquiescence regulations, which we are now publishing as final
rules.
The proposed rules provided the addition of new paragraphs
404.985(b)(1) and 416.1485(b)(1) to establish a general goal for
issuing ARs no later than 120 days from the date of our receipt of a
precedential circuit court decision. The proposed rules also provided,
by the addition of new paragraphs 404.985(b)(3) and 416.1485(b)(3), for
new procedures to identify claims pending within SSA which may be
affected by an AR that may subsequently be issued. These same sections
also provided that, once an AR is issued, we will send notices to those
individuals whose claims have been identified as potentially being
affected by the AR informing them of their right to request a
readjudication, as described in paragraphs 404.985(b)(2) and
416.1485(b)(2) of the rules.
The Final Rules
The Role of Litigation in the Policymaking Process
Our review indicated that it is important to reaffirm the principle
that our goal in administering our programs is to have uniform,
national program standards. Our procedures, which provide for
acquiescence within the circuit when a circuit court issues a
precedential decision containing a holding that we determine conflicts
with our interpretation of the Act or regulations, result in differing
rules in different sections of the country. This situation is not
desirable and ordinarily should not, if possible, continue
indefinitely.
Therefore, we wish to make it clear that generally ARs are
temporary measures. When we receive a precedential circuit court
decision containing a holding that we determine conflicts with our
interpretation of the Act or regulations, we consider whether the rules
at issue should be changed on a nationwide basis to conform to the
court's holding. If we continue to believe that our interpretation of
the statute or regulations at issue is correct and we seek further
judicial review of the circuit court's decision, we will stay further
development of the AR until the judicial review process runs its
course. If our assessment shows that we should change our rules and
adopt a circuit court's holding nationwide, we will, at the time we
publish the AR, have determined the steps necessary to do so. This may
require changing our regulations or rulings; it may also require
seeking a clarifying legislative change to the Act. We would then
proceed to issue an AR because changing our nationwide rules through
legislation or rulemaking may require a significant period of time.
Similarly, if our assessment shows that our rules represent a
reasonable interpretation of the Act or regulations, but we are unable
to resolve the matter by seeking further judicial review, we will issue
an AR and at the time we publish the AR have determined the appropriate
steps to attempt to address the issue which was the subject of the
circuit court's holding. This may mean issuing clarifying regulations
or seeking legislation. There are certain instances when an issue
cannot be resolved, such as a constitutional issue which the Supreme
Court chooses not to review or legislation is required but not enacted
and, therefore, an AR may remain in effect.
Although our goal to have uniform national standards is implicit in
the current regulations, we are including in this preamble an explicit
statement of our commitment to maintaining a uniform nationwide system
of rules. In addition to making minor editorial corrections to the
current regulations, these rules amend the regulations in two
substantive areas, as follow:
Establishing a Timeliness Goal for Issuing ARs
A common criticism regarding the acquiescence process has involved
the length of time it has taken for us to prepare and issue an AR. As a
result, we have reassessed our procedures and have decided to place in
our regulations our goal to release an AR for publication in the
Federal Register no later than 120 days from the time we receive a
precedential circuit court decision for which the AR is being issued,
unless further judicial review of that decision is pending. This
timeframe will also not apply when publication of an AR requires such
coordination with the Department of Justice and/or other Federal
agencies that it becomes no longer feasible. We are adding new
[[Page 24928]]
paragraphs 404.985(b)(1) and 416.1485(b)(1) so that the public is fully
informed of this new timeframe.
Identifying Pending Claims Which May Be Affected by an AR
When we published the 1990 acquiescence regulations, we noted that
a number of commenters on the 1988 proposed regulations (53 FR 46628
(November 18, 1988)) urged that we take action to identify and list
pending claims that might be affected by an AR. In the response to that
comment, we stated at 55 FR at 1013:
As a matter of operational necessity, some time will always
elapse between the date of a court decision and the time that we
could notify all adjudicators to begin listing cases which might be
affected by its holding. Thus, a substantial number of cases would
not be listed for later readjudication. The process which these
comments suggest presumes instantaneous, comprehensive
identification of all cases, which operationally we cannot
accomplish. Therefore, despite the fact that requiring claimants to
seek readjudication does require some action on their part, we have
concluded that this is the most efficient and effective way to
proceed and have not adopted these comments in the final
regulations.
The basic facts noted in that response remain valid. Despite improved
technology, it is still operationally impossible for us to identify all
pending claims that might be affected by an AR. However, we have
reassessed this situation and have now decided that it would be
appropriate to identify pending claims that might be affected by an AR,
as expeditiously as possible, even though we may not be able to
identify all such claims.
Therefore, as described in paragraphs 404.985(b)(3) and
416.1485(b)(3), we are implementing the following procedures. As soon
as possible after we receive a precedential circuit court decision that
we find may contain a holding that conflicts with our interpretation of
the Act or regulations, we will develop and provide our adjudicators
with criteria that they will use to identify pending claims we are
deciding within the relevant circuit that might be affected, if we
subsequently determine that an AR is required. If an AR is subsequently
released, a notice will be sent informing the claimants in these cases
that might be affected by the AR that an AR has been issued that might
affect the claim. The notice to the claimant will also explain the
procedures for obtaining a readjudication of the claim under the AR. If
we develop criteria and begin identifying claims, but subsequently
determine that an AR is not required, the notices will not be sent.
We will notify adjudicators of the appropriate criteria to be used
to identify claims no later than 10 days after we receive a circuit
court decision that we determine may contain a holding which conflicts
with our interpretation of the Act or regulations. Although we believe
that the new procedure to identify pending claims within the relevant
circuit that might be affected will greatly reduce the number of
claimants who would have to learn of the issuance of the AR through the
Federal Register publication of it or otherwise, the new procedure will
likely not identify all individuals whose claims may be subject to the
AR. For this reason, we have retained the readjudication procedure in
paragraphs 404.985(b)(2) and 416.1485(b)(2) to ensure the protection of
all claimants. Additionally, if a claimant or an adjudicator brings to
our attention that a claim could potentially be affected by a circuit
court decision that might become the subject of an AR, we will, if
appropriate, identify that case pending a decision as to whether an AR
is necessary in the circuit court decision in question.
These regulations do not apply to current and reopened claims
governed by the court-approved settlement in Stieberger v. Sullivan,
801 F. Supp. 1079 (S.D. N.Y. 1992), to the extent that the regulations
are inconsistent with the settlement.
Public Comments
These regulatory provisions were published in the Federal Register
as a notice of proposed rulemaking (NPRM) on September 18, 1997 (62 FR
48963). We provided the public a 60-day comment period. We received a
total of five statements containing multiple comments in response to
this NPRM, two from individuals who are attorney representatives of
claimants and three from legal services organizations.
Comment: One commenter recommended that the 120-day timeframe for
publishing an AR specified in the NPRM be reduced to coincide with the
date of the issuance of the circuit court's mandate under Rule 41 of
the Federal Rules of Appellate Procedure. The commenter stated that
this would allow SSA at least 52 days to prepare and release an AR.
Another commenter stated that an AR should be effective as of the date
of the order of the circuit court for which the AR is being issued.
Response: We have not adopted these comments. By necessity, some
time will always elapse between the date of a court decision and the
date that we publish an AR for that decision, due to the practical
impossibility of immediately taking all the steps necessary for
implementing a circuit court decision. Because, as we note below,
interpreting and applying a circuit court's holding may not be a simple
matter, we have decided that 120 days from the date we receive the
court's decision is the appropriate timeframe for us to thoroughly
analyze the decision, determine that it contains a holding conflicting
with our interpretation of the Act or regulations, and develop an AR to
provide as specific a statement as possible explaining SSA's
interpretation of the holding and how SSA will apply the holding when
adjudicating claims within the applicable circuit. Therefore, ARs will
generally continue to be effective as of the date of publication, and
the readjudication procedures will continue to be available with
respect to claims decided between the date of the court decision and
publication of the AR. The new provision in the regulation for
identifying pending claims potentially affected by the court's holding
will further protect the rights of claimants whose claims are
adjudicated during the period prior to the effective date of the AR. We
relied on similar reasoning in not adopting a comment on the 1990
acquiescence regulations, 55 FR at 1016, which suggested that ARs
should be effective as of the date of the circuit court decision.
Comment: One commenter stated that the regulations establishing the
process for identifying claims affected by precedential circuit court
holdings should provide a procedure for ``listing'' affected claims
(including those decided beyond the 120-day timeframe if publication of
an AR is delayed) and should provide our adjudicators with instructions
for readjudicating these claims. The same commenter asked who would be
responsible for identifying the affected claims and suggested that the
regulations assign this responsibility to specific SSA personnel.
Response: The regulations establish a new process for identifying
pending claims that may be affected by publication of an AR. We will
begin to list identified claims no later than 10 days after the date
the precedential circuit court decision is received by SSA.
Identification criteria and instructions will be issued to all of our
adjudicators in the circuit who will be responsible for deciding, in
accordance with those criteria and instructions, whether a particular
claim may be affected by the court's holding. We believe that
adjudicators are best suited to identify these claims because ARs apply
to all levels of adjudication, not
[[Page 24929]]
only to the ALJ and Appeals Council levels, unless a court holding by
its nature applies to only certain levels of adjudication. If
publication of an AR is delayed beyond the 120-day timeframe, the
identification process will continue until the AR is issued. After an
AR is published, additional instructions for each AR will be issued to
all adjudicators in the circuit as needed.
Comment: One commenter stated that paragraph 404.985(b)(3) of the
regulations should explicitly reflect the timeframe which was contained
in the preamble to the NPRM that, within 10 days after SSA receives a
circuit court decision for which it determines an AR may be required,
SSA will provide instructions to adjudicators on the criteria for
identifying pending claims that might be subject to readjudication if
an AR is subsequently published for that court decision.
Response: Ordinarily we do not include operational processing time
goals in regulations. However, because of our commitment to the timely
publication of ARs, we have provided in these regulations that, in
general, an AR will be released for publication in the Federal Register
no later than 120 days from receipt of the court's decision. We believe
the operational steps necessary for identifying pending claims are
appropriately placed in the various detailed instructions that will be
issued to adjudicators. Since the specific elements of the
identification process are an operational matter, we have not placed it
within the regulations. When we issue implementing instructions, they
will contain the operational details necessary for us to inform
adjudicators and others in the claims process of the appropriate
criteria to be used to identify claims no later than 10 days after we
receive a circuit court decision that we determine may contain a
holding which conflicts with our interpretation of the Act or
regulations.
Comment: One individual suggested that any process that does not
provide for notice to all claimants, including claimants who received
determinations between the date of the circuit court decision and the
date we start identifying claimants who could potentially be affected
by an AR (generally 10 days after our receipt of the circuit court
decision), is ``wholly inadequate.''
Response: As we pointed out in the NPRM, we recognize that the new
procedure may not identify all individuals who could be affected by an
AR. Consequently, we have retained the readjudication procedures in
paragraphs 404.985(b)(2) and 416.1485(b)(2) to ensure the protection of
all claimants. We expect that, generally, very few claims that could
potentially be affected by an AR will be adjudicated during the
relatively short period before we begin to identify claimants. However,
claimants can bring to our attention and adjudicators can identify such
claims during this period. While the procedures contained in our
regulations require some action on the claimant's part, we have
concluded that, from an operational standpoint, we cannot always
accomplish instantaneous, comprehensive identification of all claims.
We believe the new procedure represents the best balance we can strike
between service to claimants and operational limitations.
Comment: Two commenters suggested that we publish our decision not
to issue an AR for a circuit court holding that we determine does not
conflict with our interpretation of the Act or regulations. One of
these commenters also suggested that we should publish a notice in the
Federal Register whenever we are unable to meet the 120-day timeframe
for publishing an AR.
Response: We have not adopted these comments. We review
approximately 600 circuit court decisions each year to determine
whether an AR is required. We believe that publishing notices in the
Federal Register for each of these decisions is an inefficient and
costly way to inform the public and the courts about our conclusions
with respect to acquiescence. We also do not believe it would be
efficient to require SSA to publish a notice whenever issuance of an AR
is delayed beyond the 120-day timeframe. We believe that we will
provide the highest quality service to the public by focusing our
limited resources on publishing ARs within the 120-day timeframe
specified in these regulations and on notifying individual claimants
identified under the procedure in paragraphs 404.985(b)(3) and
416.1485(b)(3) about circuit court decisions that may affect their
claims.
Comment: One commenter suggested that the regulations should not
limit readjudications under an AR to the particular issue addressed by
the AR but instead should allow de novo review of the entire claim.
Response: Claims pending administrative review will receive de novo
review when adjudicated under an AR. Under the 1990 acquiescence
regulations, which we have not changed in this regard, other claims in
which administrative appeal rights have lapsed are readjudicated based
upon a consideration of the issues covered by the AR. To the extent
that those issues covered by the AR affect other issues in the claim,
those other issues will also be addressed as part of the
readjudication. However, we do not believe that the Act requires us to
automatically afford lapsed claims being readjudicated the opportunity
for de novo review.
Comment: One commenter suggested that the regulations should permit
full appeal rights as to a finding that a claim is not subject to
readjudication under an AR.
Response: This question was addressed in the preamble to the 1990
acquiescence regulations, 55 FR at 1014. We do not believe that
permitting further review on the question of whether or not an AR
applies to a pending claim is appropriate. Once we conclude that
readjudication is not necessary, the next step should be an appeal on
the substantive merits of the claim itself, not the readjudication
question. When a decision is reached on appeal concerning the
substantive issue(s), the readjudication issue will be resolved. In
cases where a person did not appeal timely and subsequently becomes
aware of an AR that may apply to his or her claim, the readjudication
procedure is available. Also, claimants may request to have their
lapsed claims reopened and we may do so if the grounds for reopening
are met.
We continue to believe that the combination of appeal,
readjudication, and reopening provides a fair process that protects the
rights of claimants.
Comment: One commenter expressed the view that paragraph
404.985(b)(2) should not require claimants to identify the appropriate
AR when seeking readjudication. The commenter suggests that a claimant
should be allowed to seek readjudication by identifying the appropriate
circuit court decision, without also identifying the AR.
Response: We have adopted this comment and modified the new
paragraphs under 404.985(b)(2) and 416.1485(b)(2) to specify that the
claimant may request application of the AR to his or her case by either
citing the AR or, in the alternative, by specifying the holding or
portion of a circuit court decision which could change the prior
determination in their case. It should be noted, however, that the 1990
regulations provided under paragraphs 404.985(b) and 416.1485(b) that
one way a claimant may obtain a readjudication was by submitting a
statement which cited the AR; the regulations did not state that this
was, and we did not intend this to be, an absolute requirement for
obtaining readjudication.
Regulation paragraphs 404.985(b)(3) and 416.1485(b)(3) provide for
the identification by SSA of pending claims which might be affected by
the issuance
[[Page 24930]]
of an AR. When an AR is published, we will send individual notices for
those claims. In addition, as stated in the preamble to the NPRM, a
claimant or an adjudicator may bring to our attention a claim that
could be potentially affected by a circuit court decision and we will,
if appropriate, identify that claim pending our decision as to whether
an AR is necessary for the circuit court decision in question.
Comment: One individual observed that the regulations result in the
application of differing rules in different sections of the country,
which is not desirable, and the regulations can cause the differing
rules to continue indefinitely without restoring national uniformity.
The commenter suggested that we establish a formal process to oversee
litigation and to make changes in national rules whenever a district or
circuit court decision conflicted with our rules.
Response: As discussed in the preamble to the 1990 acquiescence
regulations, 55 FR at 1012-1013, a number of studies on the subject of
Federal acquiescence have noted that nationwide adoption of the
decision of the first circuit court to address an issue (intercircuit
acquiescence) would preclude other circuit courts from considering the
issue. In 1984, when Congress considered legislation that would have
required SSA to acquiesce in circuit court decisions, the Solicitor
General of the United States expressed similar concerns, stating that
the practical effect of that legislation would be to require the
Department of Justice to consider seeking Supreme Court review of the
first adverse decision on an issue by any court of appeals. The
Department of Justice reiterated these concerns in 1997 when Congress
was again considering legislation to address the issue of acquiescence
by Federal agencies.
An approach that would require nationwide adoption of the first
circuit court decision on a particular issue would not improve SSA's
adjudicatory and policy making processes, but would instead result in
the first circuit that happened to rule on an issue setting SSA's
national rules on that subject. In effect, the circuit court that would
rule first would rule last. This result could hardly be intended by any
reasonable interpretation of acquiescence and would undermine the
advantages, which have been recognized by the Supreme Court, of having
issues considered by more than one circuit court.
Moreover, we acquiesce only in the holdings of Federal circuit
courts and not in holdings of Federal district courts within a circuit.
See SSR 96-1p (61 FR 34470). This is consistent with the well-
recognized principle that one district court's decision does not
constitute binding precedent applicable to other claims arising within
that district. There is no such thing as the ``law of the district.''
Indeed, even within the same district, one judge may disagree with the
holding in a decision by another judge. Thus, despite a district court
holding in a decision that may conflict with our interpretation of the
Act or regulations, we will continue to apply our nationwide rules when
adjudicating claims within that district court's jurisdiction unless
the court directs otherwise such as may occur in a class action.
Comment: Several commenters expressed the opinion that we have not
fully implemented our existing acquiescence policy because, in
reviewing circuit court holdings to determine whether they conflict
with our rules, we read the holdings too narrowly and, thus,
incorrectly decide that an AR is not necessary. The commenters
suggested that this was caused by a lack of specific standards for
determining when a circuit court holding conflicts with our rules. One
commenter said that it was inappropriate for us to interpret circuit
court holdings and that we should be limited to merely implementing the
``policy directive'' stated by the court.
Response: We review every circuit court decision to determine
whether a circuit court's holding conflicts with our interpretation of
the Act or regulations. Since our acquiescence policy became effective
in 1985, we have published 68 ARs. There has been a dramatic decline in
litigation based on allegations that we have refused to acquiesce in
specific circuit court decisions since the adoption of the 1990
acquiescence regulations.
As discussed in the preamble to the 1990 acquiescence regulations,
55 FR at 1012, the vast majority of adverse circuit court decisions do
not conflict with our interpretation of the Act and regulations; they
are based either on the issue of whether substantial evidence supports
SSA's final administrative decision or on the issue of whether the
final administrative decision adheres to established agency rules. A
court holding based on the adjudicator's failure to follow established
rules does not conflict with the rules themselves. Identifying the
holding of a particular circuit court decision and determining whether
or not the holding conflicts with our interpretation of the Act and
regulations are not always clear or simple matters, and this may
account for the concern expressed by these commenters about how we
implement acquiescence policy.
Establishing specific standards for evaluating whether a court
holding conflicts with our interpretation of the Act and regulations
would be impractical because of the diversity and complexities both of
the programs and policies we administer and of the court decisions
concerning these programs and policies. For example, the policies and
issues considered in adjudicating disability claims usually involve
technical medical and vocational concepts, which are very different
from the benefit computation and family relationship questions
frequently considered in retirement and survivors claims. Because
explaining how we will apply the circuit court holding within the
circuit is also not a clear and simple matter, we do not believe that a
standard for analyzing all circuit court holdings would be feasible.
Consequently, we have declined to adopt this comment.
By statute, establishing rules and procedures governing SSA's
programs is the responsibility of the Commissioner of Social Security.
Furthermore, court decisions generally resolve individual claims and
neither address similar circumstances, nor are written in a way that
necessarily instructs our adjudicators how to apply the courts'
holdings to other claims. We believe that to ensure uniform and
consistent adjudication procedures necessary for the administration of
a national program, SSA must analyze and interpret circuit court
holdings that we determine conflict with SSA's nationwide rules to
provide our adjudicators as specific a statement as possible of how to
apply the holding in the course of adjudicating other claims.
If a person believes that we have overlooked or misconstrued a
holding in a court of appeals decision, that person may bring this
matter to our attention and we will respond appropriately.
Comment: Two commenters suggested that SSA should amend the current
acquiescence regulations to direct adjudicators to follow circuit court
precedent whether or not an AR has been issued. It was also suggested
that SSR 96-1p, which sets forth a different policy from that suggested
by the commenters, be withdrawn immediately.
Response: Both the preamble to the 1990 acquiescence regulations,
55 FR at 1013, and SSR 96-1p, published on July 2, 1996, explain the
basis for our longstanding policy that SSA adjudicators are to follow
SSA's nationwide rules until the
[[Page 24931]]
Commissioner determines that a circuit court holding is in conflict
with our national rules and publishes an AR instructing adjudicators on
how the decision is to be followed within the applicable circuit.
Circuit court decisions generally resolve individual claims and are not
necessarily written in a way that instructs our adjudicators on how to
consistently apply the courts' holdings to other claims, particularly
when the numerous possible situations to which they may apply are
considered. The meaning and scope of a court holding are not always
clear and can be subject to disparate interpretations.
If each of SSA's over 15,000 adjudicators were permitted to apply
his or her own interpretation of a circuit court decision in resolving
these difficult questions, rather than relying on guidance from the
Commissioner in the form of an AR, it could result in conflicting
standards being used by decisionmakers, even within the same circuit.
Furthermore, the Commissioner has the responsibility by statute to
administer the Social Security programs and establish the agency's
rules and procedures. If the Commissioner abdicated that responsibility
by allowing individual adjudicators to decide claims according to his
or her individual interpretation of the law, it would be impossible for
the Commissioner to carry out his responsibility to administer the
Social Security programs in an effective and efficient manner on a
nationwide basis, and to ensure consistent and uniform application of
SSA's rules. Indeed, some adjudicators might apply the circuit court's
decision in ways less favorable to claimants than the court intended.
Furthermore, it would not necessarily be apparent what standard was
applied by an individual adjudicator; therefore, unlike the standards
established by the Commissioner in an AR, the interpretation of a
circuit court decision by an individual adjudicator might not be
readily susceptible to judicial scrutiny.
In addition, adjudicators at the initial and reconsideration levels
of review generally do not have any legal training in interpreting and
applying circuit court decisions. If authority to apply circuit court
decisions in the absence of an AR was extended only to ALJs and the
Appeals Council, it would further undermine uniformity in
decisionmaking by creating different standards of adjudication at
different levels of administrative review.
For all these reasons, we continue to believe that the AR is the
fairest and most effective method to achieve uniform acquiescence in
circuit court holdings that conflict with SSA's nationwide rules. This
approach is consistent with the longstanding legal principle that it is
the responsibility of the Commissioner, not individual adjudicators, to
establish SSA's rules and policies (including how to apply a circuit
court holding which conflicts with SSA's nationwide rules). Any erosion
of this legal principle would represent a radical change in the Federal
administrative structure, and would undermine a Federal department or
agency head's accountability for the administration of the agency's
programs. Therefore, it is the role and responsibility of individual
adjudicators to decide claims by applying the rules and policies
established by the Commissioner to the facts of an individual case.
Comment: One individual suggested that we clarify our longstanding
regulatory language setting forth SSA's authority to rescind an AR when
we subsequently publish a new regulation addressing an issue not
previously included in our regulations.
Response: This provision has been in the regulations since 1990 and
courts have not found that it has been misapplied. We do not believe
there is a need for a clarifying amendment to this particular provision
at this time.
Comment: One commenter questioned the legality of relitigating in
the same circuit an issue addressed by an AR. Another questioned
whether the regulations permit SSA to relitigate an issue within the
same circuit after publication of an AR if we later publish a
nationwide regulation reaffirming our original position on the issue.
Response: These final rules make no changes in our relitigation
policies and procedures which were set forth in the 1990 acquiescence
regulations. We do not believe that a Federal agency is legally
precluded from relitigating an issue within a circuit that has
previously issued a ruling adverse to the Government's position. When
we published the 1990 acquiescence regulations, we discussed some of
the authorities supporting our position on relitigation and stated that
we would not use relitigation as a primary means for resolving
conflicts in statutory and regulatory interpretation. To date, we have
never used the relitigation procedures outlined in the 1990
regulations. Those regulations state that if we do decide to relitigate
an issue, we will publish a notice of our intention in the Federal
Register and also provide a notice explaining our action to all
affected claimants.
As discussed in the preamble to the 1990 acquiescence regulations,
55 FR at 1015, when we determine that a circuit court holding conflicts
with our interpretation of the Act and regulations, we generally expect
to resolve the conflict by actively pursuing our right to seek further
judicial review, revisiting the same issue in related litigation,
clarifying our regulations, or seeking statutory amendments. The
regulations outline a process for relitigating a court's holding within
the same circuit after publication of an AR, which requires certain
specific activating events. Publication of a regulation, by itself, is
not an activating event for relitigation.
Based on our analysis of the comments, and for the reasons set
forth above, we are publishing the proposed rules as final rules with
the changes to paragraphs 404.985(b)(2) and 416.1485(b)(2) discussed
above. We have also made minor editorial and technical changes for
clarification and consistency.
Regulatory Procedures
Executive Order 12866
We have consulted with the Office of Management and Budget (OMB)
and determined that these rules do not meet the criteria for a
significant regulatory action under Executive Order 12866. Thus, they
are not subject to OMB review.
Regulatory Flexibility Act
We certify that these regulations will not have a significant
economic impact on a substantial number of small entities because these
rules affect only individuals. Therefore, a regulatory flexibility
analysis as provided in the Regulatory Flexibility Act, as amended, is
not required.
Paperwork Reduction Act
These regulations contain information collection requirements in
paragraphs 404.985(b) and 416.1485(b). We have received approval for
these requirements from OMB under OMB No. 0960-0581 which expires
November 30, 2000.
(Catalog of Federal Domestic Assistance Program Nos. 96.001, Social
Security-Disability Insurance; 96.002, Social Security-Retirement
Insurance; 96.003, Social Security-Special Benefits for Persons Aged
72 and Over; 96.004, Social Security-Survivors Insurance; 96.006,
Supplemental Security Income)
List of Subjects
20 CFR Part 404
Administrative practice and procedure, Death benefits, Disability
[[Page 24932]]
benefits, Old-Age, Survivors and Disability insurance, Reporting and
recordkeeping requirements, Social security.
20 CFR Part 416
Administrative practice and procedure, Aged, Blind, Disability
benefits, Public assistance programs, Reporting and recordkeeping
requirements Supplemental Security Income (SSI).
Dated: April 27, 1998.
Kenneth S. Apfel,
Commissioner of Social Security.
For the reasons set out in the preamble, subpart J of part 404 and
subpart N of part 416 of chapter III of title 20 of the Code of Federal
Regulations are amended as set forth below:
PART 404--FEDERAL OLD-AGE, SURVIVORS AND DISABILITY INSURANCE
(1950-)
20 CFR part 404, subpart J, is amended as follows:
1. The authority citation for subpart J of part 404 continues to
read as follows:
Authority: Secs. 201(j), 205(a), (b), (d)-(h), and (j), 221,
225, and 702(a)(5) of the Social Security Act (42 U.S.C. 401(j),
405(a), (b), (d)-(h), and (j), 421, 425, and 902(a)(5)); 31 U.S.C.
3720A; sec. 5, Pub. L. 97-455, 96 Stat. 2500 (42 U.S.C. 405 note);
secs. 5, 6(c)-(e), and 15, Pub. L. 98-460, 98 Stat. 1802 (42 U.S.C.
421 note).
2. Section 404.985 is revised to read as follows:
Sec. 404.985 Application of circuit court law.
The procedures which follow apply to administrative determinations
or decisions on claims involving the application of circuit court law.
(a) General. We will apply a holding in a United States Court of
Appeals decision that we determine conflicts with our interpretation of
a provision of the Social Security Act or regulations unless the
Government seeks further judicial review of that decision or we
relitigate the issue presented in the decision in accordance with
paragraphs (c) and (d) of this section. We will apply the holding to
claims at all levels of the administrative review process within the
applicable circuit unless the holding, by its nature, applies only at
certain levels of adjudication.
(b) Issuance of an Acquiescence Ruling. When we determine that a
United States Court of Appeals holding conflicts with our
interpretation of a provision of the Social Security Act or regulations
and the Government does not seek further judicial review or is
unsuccessful on further review, we will issue a Social Security
Acquiescence Ruling. The Acquiescence Ruling will describe the
administrative case and the court decision, identify the issue(s)
involved, and explain how we will apply the holding, including, as
necessary, how the holding relates to other decisions within the
applicable circuit. These Acquiescence Rulings will generally be
effective on the date of their publication in the Federal Register and
will apply to all determinations and decisions made on or after that
date unless an Acquiescence Ruling is rescinded as stated in paragraph
(e) of this section. The process we will use when issuing an
Acquiescence Ruling follows:
(1) We will release an Acquiescence Ruling for publication in the
Federal Register for any precedential circuit court decision that we
determine contains a holding that conflicts with our interpretation of
a provision of the Social Security Act or regulations no later than 120
days from the receipt of the court's decision. This timeframe will not
apply when we decide to seek further judicial review of the circuit
court decision or when coordination with the Department of Justice and/
or other Federal agencies makes this timeframe no longer feasible.
(2) If we make a determination or decision on your claim between
the date of a circuit court decision and the date we publish an
Acquiescence Ruling, you may request application of the published
Acquiescence Ruling to the prior determination or decision. You must
demonstrate that application of the Acquiescence Ruling could change
the prior determination or decision in your case. You may demonstrate
this by submitting a statement that cites the Acquiescence Ruling or
the holding or portion of a circuit court decision which could change
the prior determination or decision in your case. If you can so
demonstrate, we will readjudicate the claim in accordance with the
Acquiescence Ruling at the level at which it was last adjudicated. Any
readjudication will be limited to consideration of the issue(s) covered
by the Acquiescence Ruling and any new determination or decision on
readjudication will be subject to administrative and judicial review in
accordance with this subpart. Our denial of a request for
readjudication will not be subject to further administrative or
judicial review. If you file a request for readjudication within the
60-day appeal period and we deny that request, we shall extend the time
to file an appeal on the merits of the claim to 60 days after the date
that we deny the request for readjudication.
(3) After we receive a precedential circuit court decision and
determine that an Acquiescence Ruling may be required, we will begin to
identify those claims that are pending before us within the circuit and
that might be subject to readjudication if an Acquiescence Ruling is
subsequently issued. When an Acquiescence Ruling is published, we will
send a notice to those individuals whose cases we have identified which
may be affected by the Acquiescence Ruling. The notice will provide
information about the Acquiescence Ruling and the right to request
readjudication under that Acquiescence Ruling, as described in
paragraph (b)(2) of this section. It is not necessary for an individual
to receive a notice in order to request application of an Acquiescence
Ruling to his or her claim, as described in paragraph (b)(2) of this
section.
(c) Relitigation of court's holding after publication of an
Acquiescence Ruling. After we have published an Acquiescence Ruling to
reflect a holding of a United States Court of Appeals on an issue, we
may decide under certain conditions to relitigate that issue within the
same circuit. We may relitigate only when the conditions specified in
paragraphs (c)(2) and (3) of this section are met, and, in general, one
of the events specified in paragraph (c)(1) of this section occurs.
(1) Activating events:
(i) An action by both Houses of Congress indicates that a circuit
court decision on which an Acquiescence Ruling was based was decided
inconsistently with congressional intent, such as may be expressed in a
joint resolution, an appropriations restriction, or enactment of
legislation which affects a closely analogous body of law;
(ii) A statement in a majority opinion of the same circuit
indicates that the court might no longer follow its previous decision
if a particular issue were presented again;
(iii) Subsequent circuit court precedent in other circuits supports
our interpretation of the Social Security Act or regulations on the
issue(s) in question; or
(iv) A subsequent Supreme Court decision presents a reasonable
legal basis for questioning a circuit court holding upon which we base
an Acquiescence Ruling.
(2) The General Counsel of the Social Security Administration,
after consulting with the Department of Justice, concurs that
relitigation of an issue and application of our interpretation of the
Social Security Act or regulations to selected claims in the
[[Page 24933]]
administrative review process within the circuit would be appropriate.
(3) We publish a notice in the Federal Register that we intend to
relitigate an Acquiescence Ruling issue and that we will apply our
interpretation of the Social Security Act or regulations within the
circuit to claims in the administrative review process selected for
relitigation. The notice will explain why we made this decision.
(d) Notice of relitigation. When we decide to relitigate an issue,
we will provide a notice explaining our action to all affected
claimants. In adjudicating claims subject to relitigation,
decisionmakers throughout the SSA administrative review process will
apply our interpretation of the Social Security Act and regulations,
but will also state in written determinations or decisions how the
claims would have been decided under the circuit standard. Claims not
subject to relitigation will continue to be decided under the
Acquiescence Ruling in accordance with the circuit standard. So that
affected claimants can be readily identified and any subsequent
decision of the circuit court or the Supreme Court can be implemented
quickly and efficiently, we will maintain a listing of all claimants
who receive this notice and will provide them with the relief ordered
by the court.
(e) Rescission of an Acquiescence Ruling. We will rescind as
obsolete an Acquiescence Ruling and apply our interpretation of the
Social Security Act or regulations by publishing a notice in the
Federal Register when any of the following events occurs:
(1) The Supreme Court overrules or limits a circuit court holding
that was the basis of an Acquiescence Ruling;
(2) A circuit court overrules or limits itself on an issue that was
the basis of an Acquiescence Ruling;
(3) A Federal law is enacted that removes the basis for the holding
in a decision of a circuit court that was the subject of an
Acquiescence Ruling; or
(4) We subsequently clarify, modify or revoke the regulation or
ruling that was the subject of a circuit court holding that we
determined conflicts with our interpretation of the Social Security Act
or regulations, or we subsequently publish a new regulation(s)
addressing an issue(s) not previously included in our regulations when
that issue(s) was the subject of a circuit court holding that
conflicted with our interpretation of the Social Security Act or
regulations and that holding was not compelled by the statute or
Constitution.
PART 416--SUPPLEMENTAL SECURITY INCOME FOR THE AGED, BLIND, AND
DISABLED
20 CFR part 416, subpart N, is amended as follows:
1. The authority citation for subpart N continues to read as
follows:
Authority: Secs. 702(a)(5), 1631, and 1633 of the Social
Security Act (42 U.S.C. 902(a)(5), 1383, and 1383b).
2. Section 416.1485 is revised to read as follows:
Sec. 416.1485 Application of circuit court law.
The procedures which follow apply to administrative determinations
or decisions on claims involving the application of circuit court law.
(a) General. We will apply a holding in a United States Court of
Appeals decision that we determine conflicts with our interpretation of
a provision of the Social Security Act or regulations unless the
Government seeks further judicial review of that decision or we
relitigate the issue presented in the decision in accordance with
paragraphs (c) and (d) of this section. We will apply the holding to
claims at all levels of the administrative review process within the
applicable circuit unless the holding, by its nature, applies only at
certain levels of adjudication.
(b) Issuance of an Acquiescence Ruling. When we determine that a
United States Court of Appeals holding conflicts with our
interpretation of a provision of the Social Security Act or regulations
and the Government does not seek further judicial review or is
unsuccessful on further review, we will issue a Social Security
Acquiescence Ruling. The Acquiescence Ruling will describe the
administrative case and the court decision, identify the issue(s)
involved, and explain how we will apply the holding, including, as
necessary, how the holding relates to other decisions within the
applicable circuit. These Acquiescence Rulings will generally be
effective on the date of their publication in the Federal Register and
will apply to all determinations, redeterminations, and decisions made
on or after that date unless an Acquiescence Ruling is rescinded as
stated in paragraph (e) of this section. The process we will use when
issuing an Acquiescence Ruling follows:
(1) We will release an Acquiescence Ruling for publication in the
Federal Register for any precedential circuit court decision that we
determine contains a holding that conflicts with our interpretation of
a provision of the Social Security Act or regulations no later than 120
days from the receipt of the court's decision. This timeframe will not
apply when we decide to seek further judicial review of the circuit
court decision or when coordination with the Department of Justice and/
or other Federal agencies makes this timeframe no longer feasible.
(2) If we make a determination or decision on your claim between
the date of a circuit court decision and the date we publish an
Acquiescence Ruling, you may request application of the published
Acquiescence Ruling to the prior determination or decision. You must
demonstrate that application of the Acquiescence Ruling could change
the prior determination or decision in your case. You may demonstrate
this by submitting a statement that cites the Acquiescence Ruling or
the holding or portion of a circuit court decision which could change
the prior determination or decision in your case. If you can so
demonstrate, we will readjudicate the claim in accordance with the
Acquiescence Ruling at the level at which it was last adjudicated. Any
readjudication will be limited to consideration of the issue(s) covered
by the Acquiescence Ruling and any new determination or decision on
readjudication will be subject to administrative and judicial review in
accordance with this subpart. Our denial of a request for
readjudication will not be subject to further administrative or
judicial review. If you file a request for readjudication within the
60-day appeal period and we deny that request, we shall extend the time
to file an appeal on the merits of the claim to 60 days after the date
that we deny the request for readjudication.
(3) After we receive a precedential circuit court decision and
determine that an Acquiescence Ruling may be required, we will begin to
identify those claims that are pending before us within the circuit and
that might be subject to readjudication if an Acquiescence Ruling is
subsequently issued. When an Acquiescence Ruling is published, we will
send a notice to those individuals whose cases we have identified which
may be affected by the Acquiescence Ruling. The notice will provide
information about the Acquiescence Ruling and the right to request
readjudication under that Acquiescence Ruling, as described in
paragraph (b)(2) of this section. It is not necessary for an individual
to receive a notice in order to request application of an Acquiescence
Ruling to his or her claim, as described in paragraph (b)(2) of this
section.
(c) Relitigation of court's holding after publication of an
Acquiescence Ruling. After we have published an Acquiescence Ruling to
reflect a holding
[[Page 24934]]
of a United States Court of Appeals on an issue, we may decide under
certain conditions to relitigate that issue within the same circuit. We
may relitigate only when the conditions specified in paragraphs (c)(2)
and (3) of this section are met, and, in general, one of the events
specified in paragraph (c)(1) of this section occurs.
(1) Activating events:
(i) An action by both Houses of Congress indicates that a circuit
court decision on which an Acquiescence Ruling was based was decided
inconsistently with congressional intent, such as may be expressed in a
joint resolution, an appropriations restriction, or enactment of
legislation which affects a closely analogous body of law;
(ii) A statement in a majority opinion of the same circuit
indicates that the court might no longer follow its previous decision
if a particular issue were presented again;
(iii) Subsequent circuit court precedent in other circuits supports
our interpretation of the Social Security Act or regulations on the
issue(s) in question; or
(iv) A subsequent Supreme Court decision presents a reasonable
legal basis for questioning a circuit court holding upon which we base
an Acquiescence Ruling.
(2) The General Counsel of the Social Security Administration,
after consulting with the Department of Justice, concurs that
relitigation of an issue and application of our interpretation of the
Social Security Act or regulations to selected claims in the
administrative review process within the circuit would be appropriate.
(3) We publish a notice in the Federal Register that we intend to
relitigate an Acquiescence Ruling issue and that we will apply our
interpretation of the Social Security Act or regulations within the
circuit to claims in the administrative review process selected for
relitigation. The notice will explain why we made this decision.
(d) Notice of relitigation. When we decide to relitigate an issue,
we will provide a notice explaining our action to all affected
claimants. In adjudicating claims subject to relitigation,
decisionmakers throughout the SSA administrative review process will
apply our interpretation of the Social Security Act and regulations,
but will also state in written determinations or decisions how the
claims would have been decided under the circuit standard. Claims not
subject to relitigation will continue to be decided under the
Acquiescence Ruling in accordance with the circuit standard. So that
affected claimants can be readily identified and any subsequent
decision of the circuit court or the Supreme Court can be implemented
quickly and efficiently, we will maintain a listing of all claimants
who receive this notice and will provide them with the relief ordered
by the court.
(e) Rescission of an Acquiescence Ruling. We will rescind as
obsolete an Acquiescence Ruling and apply our interpretation of the
Social Security Act or regulations by publishing a notice in the
Federal Register when any of the following events occurs:
(1) The Supreme Court overrules or limits a circuit court holding
that was the basis of an Acquiescence Ruling;
(2) A circuit court overrules or limits itself on an issue that was
the basis of an Acquiescence Ruling;
(3) A Federal law is enacted that removes the basis for the holding
in a decision of a circuit court that was the subject of an
Acquiescence Ruling; or
(4) We subsequently clarify, modify or revoke the regulation or
ruling that was the subject of a circuit court holding that we
determined conflicts with our interpretation of the Social Security Act
or regulations, or we subsequently publish a new regulation(s)
addressing an issue(s) not previously included in our regulations when
that issue(s) was the subject of a circuit court holding that
conflicted with our interpretation of the Social Security Act or
regulations and that holding was not compelled by the statute or
Constitution.
[FR Doc. 98-11945 Filed 5-5-98; 8:45 am]
BILLING CODE 4190-11-P
