Monday, December 13, 2010

ObamaCare Ruled Unconstitutional By Federal Judge in Virginia.

RICHMOND - A federal judge in Virginia ruled 13 December 2010 that a key provision of the nation's sweeping health-care overhaul is unconstitutional, the most significant legal setback so far for President Obama's signature domestic initiative.

U.S. District Court Judge Henry E. Hudson found that Congress could not order individuals to buy health insurance.

In a 42-page opinion, Hudson said the provision of the law that requires most individuals to get insurance or pay a fine by 2014 is an unprecedented expansion of federal power that cannot be supported by Congress's power to regulate interstate trade.

"Neither the Supreme Court nor any federal circuit court of appeals has extended Commerce Clause powers to compel an individual to involuntarily enter the stream of commerce by purchasing a commodity in the private market," he wrote. "In doing so, enactment of the [individual mandate] exceeds the Commerce Clause powers vested in Congress under Article I [of the Constitution.]

Hudson is the first judge to rule that the individual mandate is unconstitutional. He said, however, that portions of the law that do not rest on the requirement that individuals obtain insurance are legal and can proceed. Hudson indicated there was no need for him to enjoin the law and halt its implementation, since the mandate does not go into effect until 2014.

The ruling comes in a case filed by Virginia Attorney General Ken Cuccinelli II (R), who said he was defending a new state statute that made it illegal to require people to carry health insurance in Virginia.

"I am gratified we prevailed," Cuccinelli said in a statement. "This won't be the final round, as this will ultimately be decided by the Supreme Court, but today is a critical milestone in the protection of the Constitution."

Federal officials responded that they are confident the statute will ultimately be upheld. A victory for Cuccinelli at this early legal stage means no more for the law's fate than previous rulings that have found the opposite, they have argued.

"We are disappointed in today's ruling but continue to believe - as other federal courts in Virginia and Michigan have found - that the Affordable Care Act is constitutional," Tracy Schmaler, a spokeswoman for the U.S. Department of Justice, said in a statement. "There is clear and well-established legal precedent that Congress acted within its constitutional authority in passing this law, and we are confident that we will ultimately prevail."

At the White House, spokesman Robert Gibbs pointed to the other rulings in favor of the individual mandate. "We are confident that [the individual mandate] is constitutional, he said. "We disagree with the ruling."

According to a new Washington Post-ABC News poll, a slim majority of all Americans - including almost all Republicans - oppose the health-care reform law. But the legislation's detractors are split on whether and how much of it should be rolled back.

Overall, 52 percent of those polled oppose the overhaul to the health-care system; 43 percent are supportive of it. Fully 86 percent of Republicans are against the legislation; 67 percent of Democrats support it. Independents divide down the middle, with 47 percent in favor and the same number opposed.

Most of those who oppose the health-care changes - 59 percent - want the law repealed, but 38 percent would prefer a "wait and see" approach. Democrats who oppose the law generally support waiting to see how the law operates, while most Republicans would prefer to see it repealed.

Republicans, though, are divided about whether the pullback should be a total repeal or only a partial one. Among Republicans opposed to the health-care package, 39 percent want a complete repeal, and 32 percent want to cancel parts of the law.

In large part, the mixed approach to amending the legislation reflects high Republican support for components of the legislation.

The Virginia suit is one of 25 legal challenges to the federal law wending their way through the federal courts across the country. In two other lawsuits, judges sitting in Michigan and Lynchburg, Va., have found that the same provision of the law passed legal muster. A third judge in Florida is also weighing constitutionality of the individual mandate in a suit jointly filed by 20 states.

The statute's constitutionality will ultimately be determined by the U.S. Supreme Court.

The ruling by Hudson, an appointee of President George W. Bush's, was widely anticipated based on tough questions he lobbed at Obama administration lawyers in oral arguments in his Richmond courtroom.

But the legal defeat will deal a significant political blow to the law, cheering those who have predicted its demise will come from adverse legal rulings rather than congressional repeal.

The Virginia suit would ordinarily next be heard by the Fourth Circuit Court of Appeals. Cuccinelli has indicated, however, that he would like to bypass the appeals court and move directly to the Supreme Court, an extraordinary legal maneuver that would require the high court to decide that the case held extreme public importance and intervene immediately.

He has asked the White House to sign on to the request, arguing they, too, would benefit from a quick resolution to legal questions surrounding the law. However, it is not clear whether the White House will agree.

A senior administration official has called that route "very unusual," noting that another suit is already pending before the Fourth Circuit, but declined to take the issue entirely off the table.

Wednesday, December 8, 2010

No more Appeals For Webster Smith.

A final judgement has been entered in the Case of Cadet Webster Smith. He fought a good fight; he kept the faith; and, he exhausted his judicial remedies.

Hard cases make bad law. In this case, the facts were not so hard to distinguish as the defendant was of the wrong persuasion.


No. 10-18
Title: Webster M. Smith, Petitioner
United States

Docketed: June 30, 2010
Lower Ct: United States Court of Appeals for the Armed Forces
Case Nos.: (08-0719)
Decision Date: March 29, 2010

~~~Date~~~ ~~~~~~~Proceedings and Orders~~~~~~~~~~~~~~~~~~~~~
Jun 28 2010 Petition for a writ of certiorari filed. (Response due July 30, 2010)

Jul 30 2010 Brief amicus curiae of National Association of Criminal Defense Lawyers filed.
Jul 30 2010 Brief amicus curiae of United States Army Defense Appellate Division filed.

Oct 28 2010 Brief of respondent United States in opposition filed.
Nov 5 2010 Reply of petitioner Webster M. Smith filed. TBP
Nov 8 2010 DISTRIBUTED for Conference of November 23, 2010.
Nov 29 2010 Petition DENIED.


~~Name~~~~~~~~~~~~~~~~~~~~~ ~~~~~~~Address~~~~~~~~~~~~~~~~~~ ~~Phone~~~
Attorneys for Petitioner:
Daniel S. Volchok Wilmer Cutler Hale and Dorr LLP (202) 663-6000
1875 Pennsylvania Avenue, NW
Washington, DC 20006
Party name: Webster M. Smith
Attorneys for Respondent:
Neal Kumar Katyal Acting Solicitor General (202) 514-2217
United States Department of Justice
950 Pennsylvania Avenue, N.W.
Washington, DC 20530-0001
Party name: United States
Jonathan L. Marcus Covington & Burling, LLP (202) 662-6000
1201 Pennsylvania Avenue, NW
Washington, DC 20004
Party name: National Association of Criminal Defense Lawyers

Jonathan F. Potter Senior Appellate Counsel United States Army (703) 588-6717
Defense Appellate Division
901 N. Stuart Street
Arlington, VA 22203
Party name: United States Army Defense Appellate Division

The only cadet court-martialed in the 130-year history of the Coast Guard Academy has run out of options to appeal his conviction.

Cadet Webster Smith already served time behind bars, but continued to fight all the way to the U.S. Supreme Court.

After more than four years, the Smith case is over. The former Coast Guard cadet hit a dead end when the U.S. Supreme Court has decided not to hear his final appeal.

Smith was acquitted of rape charges, but served five months in a military prison after being convicted of sodomy, extortion and other charges.

He was also kicked out of the Coast Guard Academy.

Smith has claimed in multiple appeals that his constitutional rights were violated at his trial.

He said he wasn't allowed to ask one of the female cadets who accused him of rape about her past, saying he wanted to show that the woman known as Cadet S.R., had a motive to lie about what happened with Smith.

He claimed their sexual encounter was consensual.

Since the nation's high court has declined to hear Smith's case, the final judgment comes from the U.S. Court of Appeals for the Armed Forces(CAAF).

In March the court ruled that his conviction should stand, saying "further cross-examination of Cadet S.R. was not 'constitutionally required.'"

Many Supreme Court experts thought the high court might take Smith's case, but the justices declined the case without comment. Congress is deadlocked; the President is weakened; and, the Supreme Court does not appear to be in a mood to settle conflicts of law between the Circuit Courts. Since nature abhors a vacuum, this may be a good time to legislate from the bench.

This case implicates a deep circuit conflict regarding
the standard of review that applies when a trial
judge’s restriction on the cross-examination of a prosecution
witness is challenged on appeal as a violation of
the Confrontation Clause. The Court of Appeals for the
Armed Forces (CAAF) held that the standard of
review is abuse of discretion rather than de novo. Applying
the former standard, the court rejected Webster Smith’s
Confrontation Clause claim by a vote of 3-2.

The Courts Of Appeals Are Deeply Divided
Over What Standard Of Review Applies To
Confrontation Clause Claims Like Webster Smith’s.
The CAAF employed abuse-of-discretion review in resolving
Smith’s Sixth Amendment challenge to the
military judge’s restriction on the defense’s crossexamination
of Shelly. That approach conflicts with the holdings of five circuits, which consider comparable Confrontation Clause claims de novo,
reserving abuse-of-discretion review for nonconstitutional
challenges. For example, the Seventh
Circuit has stated that “[o]rdinarily, a district court’s
evidentiary rulings are reviewed for abuse of discretion.
However, when the restriction [on crossexamination]
implicates the criminal defendant’s Sixth
Amendment right to confront witnesses against him, ...
the standard of review becomes de novo.”
The First, Fifth, Eighth, and Tenth Circuits
have adopted the same approach.

Six other circuits, by contrast—the Second, Third,
Fourth, Sixth, Eleventh, and District of Columbia Circuits—
take the same approach that CAAF does, applying
abuse-of-discretion review even when a restriction
on the cross-examination of a prosecution witness is attacked
on constitutional grounds. The Sixth Circuit,
for example, stated in one case that “[defendant] argues
that his right to confrontation was violated when the
trial court ‘unfairly’ limited his cross-examination of [a]
government witness .… We review the district court’s
restriction on a defendant’s right to cross-examine witnesses
for abuse of discretion.”

In short, CAAF’s use of an abuse-of-discretion
standard in this case perpetuates a clear—and recognized—conflict in the circuits.

The Question Presented Was Recurring And
Important, And The Smith Case Was A Good Vehicle
For Deciding It.
The circuit conflict at issue warranted resolution
by the Supreme Court. The constitutionality of restrictions
on cross-examination arises frequently in criminal prosecutions, and in every part of the country. Those cases also show that the conflict over the standard for appellate review of such restrictions is established;
there is no benefit to be gained by giving the lower courts additional time to consider the issue. Moreover, the question presented was important, because the standard of review can determine the outcome of an appeal. The difference between a rule of deference and the duty to exercise independent review is much more than a mere matter of degree. In even moderately close cases, the standard of review may be dispositive of an appellate court’s decision. That is particularly true when one
standard is highly deferential: CAAF, for example, has stated that “the abuse of discretion standard is a strict one,” satisfied only when “[t]he challenged action [is] arbitrary, fanciful, clearly unreasonable, or clearly erroneous".

Also, disuniformity created by the conflict directly
affects a fundamental individual right. Some defendants
in criminal cases enjoy less protection of the critical
right to confront their accusers because of the fortuity
of where their trials were held,or, as to cases decided
by CAAF, because they have chosen to wear the nation’s uniform.

The Webster Smith case presented a good vehicle to resolve the circuit
conflict. Webster Smith’s standard-of-review argument was both pressed and passed upon in the court of appeals, rendering the issue suitable for review by certiorari. In addition, CAAF’s rejection of Smith’s argument may well have determined the ultimate outcome. Even applying highly deferential review, CAAF was narrowly divided as to the constitutionality
of the military judge’s ruling in this case. If even one of the three judges who deemed that ruling not to be an abuse of discretion were to conclude, upon reviewing without deference, that it was inconsistent
with the Sixth Amendment, Webster Smith would have prevailed.

Smith now lives in Austin, Texas, with his wife and daughter. He's required to register as a sex offender there for the rest of his life.

Justice truly was not served in this case. What is happening in America?
What happened to Freedom of Speech and Freedom of the Press? With the dumbing-down of the American educational system, most Americans now seem to know little and care less about their fundamental freedoms and civil liberties. Some believe that the police have a right to enter their homes without probable cause or a warrant. They do not believe that they have the right to "just say No".

In the Land of the Free and the Home of the Brave fundamental freedoms are being challenged as never before. Senators on Capitol Hill sound like a lynch mob calling for the head of the Wikileaks leader who published diplomatic cables on the internet. Many of the cables were little more than embarassing gossip. Yet, the administration that came into town riding the "transparency in government" horse are scrambling to keep its in-house chatter secret. We have not seen this much ado about release of tapes and documents since Richard Nixon and Alexander Butterfield let the cat out of the bag with the Watergate Tapes brew-ha-ha.

Friday, November 19, 2010

He Fought The Law, And The Law Won. Undisputedly.

MIAMI (Reuters) - Tax avoidance is legal. Tax evasion is not. Warren Buffet, one of the riches men in the world pays no income taxes. He pays tax lawyers millions a year in fees to show him how to avoid taxes. Actor Wesley Snipes made million by hard work, but his accountants and advisers counselled him to evade taxes. The result is that Warren Buffet and Bill Gates go around the world doing good dees; Wesley Snipes goes to jail.

Wesley Snipes was ordered on Friday, 19 November 2010, to start serving a three-year prison sentence for failing to file income tax returns by a federal judge who rejected the Hollywood star's bid for a new trial.

"The defendant Snipes had a fair trial ... The time has come for the judgment to be enforced," U.S. District Judge Terrell Hodges said in his ruling.

Revoking bail for the 48-year-old star of the "Blade" trilogy, the judge ordered him to report to prison as directed by the U.S. Marshals Service or Bureau of Prisons.

It was not clear when or where Snipes would begin serving his time behind bars, however. His lawyer, Daniel Meachum, has said he would appeal if a new trial was denied.

Meachum told the Orlando Sentinel the ruling was shocking.

"Wesley is very disappointed but staying strong and positive," the newspaper quoted Meachum as saying.

Snipes had already lost his appeal of the prison sentence stemming from his 2008 conviction in Hodges' Ocala, Florida, court on three counts of "willful failure to file tax returns" for 1999 through 2001.

Snipes was found not guilty of five other counts in the high-profile felony tax case.

In seeking a new trial, Meachum had argued that jurors in the original trial were biased and that the prosecution's star witness had his own criminal problems.

At his sentencing, prosecutors said Snipes, a resident of Windermere, Florida, had earned more than $38 million since 1999 but had filed no tax returns or paid any taxes through October 2006.

Although he is best known for his roles in action films, Snipes has also had critical success in comedies like "White Men Can't Jump" in 1992. He played the lead in director Spike Lee's interracial drama "Jungle Fever" in 1991 and also played the jazz saxophonist in Lee's "Mo' Better Blues" in 1990.

Eric Thompson, a supervisor in the U.S. Marshals Service office in Orlando, Florida, said the Bureau of Prisons would notify Snipes and his lawyer of a surrender date.

"He'll probably get it by certified mail," Thompson said.

He declined to say what prison was likely to be selected for Snipes except to say that it would not be in Florida.

A listing for Snipes already posted on the Federal Bureau of Prisons website says his prisoner ID or registration number as 43355-018, his location is "in transit" and his release date is "unknown."

Sunday, November 14, 2010

Violence Against Social Security Judges Increasing.

The PowerPoint released by Erskine Bowles and Alan Simpson, the co-chairs of the National Commission on Fiscal Responsibility and Reform ("The Deficit Commission"), said we should "Reform Social Security for its own sake, not for deficit reduction."
Social Security has nothing to do with the deficit. Not now, not ever. However it has everything to do with political theater and public disinformation.
SocialSecurity is a political football, and now we are beginning the political Super Bowl Season.
Critics of Social Security have frequently made alarming claims about the future of the system to support calls for "reform". Opportunists are posturing and trying to humanize the Social Security Administration (SSA). In order to do that the first group they sieze upon to spot light are the Administrative Law Judges (ALJ) at SSA, the 1300-1400 judges who decide disability cases.

So now the SSA and its programs are at center stage of the public political debate. An avalanche of news articles has been triggered. One Associated Press article about violence against SSA ALJs became the most frequently Email-ed article on Yahoo within 48 hours of publication two days ago. However, the article can be very misleading without some insider background information.

The public is being manipulated with these articles. These articles are a diversion. They seek to make the judges appear as victims, while it is the American public who are being victimized. The judges are gatekeepers for the Social Security Trust Fund. To understand how and why read "socialNsecurity, Confessions of a Social Security Judge" at

The AP article "Violence Against Social Security Judges" could have been written 10 or even 20 years ago. Why now? The incidents cited are over 10 years old. The incidents of violence have not increased, only the threats. The threats are commonplace and go with the job.

The number one complain in disability cases in back pain. The second most common complain is a mental inpairment. Many of these claimants are seriously mentally impaired; some are certifiably insane. They talk out of their heads; and , they make threats. The ALJ is the first and sometimes only embodiment of the SSA and the Federal Governmant, so they make threats against them. But they have no means or opportunity to carry out the threats. So, by and large the threats are harmless.

Some judges will not hold a hearing without an armed Federal Protective Service officer in the hearing room. Not me. I would postpone the hearing first. I only had to do that once in my entire career as an ALJ.

Judges in Illinois were carrying guns to work in their brief cases 15 and 20 years ago. They probably still are today. The ones that I knew about, had permits to carry a fire arm. The state and the city fire arm licensing authorities must have been satisfied that there is and was a valid threat to their safety.

I have been threated. Attorneys representing claimants have been threated in my courtroom. I have heard things like "if I loose my benefits, I will kill you". That was said by a Mexican gang member with tear drops tatoos on his face and neck to an attorney in my court room.

I never let them know where I lived. I did not give out my home address. After work, I was always cautious and vigilant in the parking lot. We had to park in the same lot as the claimants. They knew our cars.

I never went straight home after work. I drove around and made sure no one was following me.

I lived less than one mile from the Downey Hearing Office. I was prepared to meet violence at the office but not at home. I was a military veteran, so danger and threats went with the job. However, my family was not to be put at risk. If I was going to be shot, it would be at the office, not at home. If a vengeful claimant was going to blow up something it was going to be the office, not my home. An Oklahoma City type of attack was acceptable, but not violence at my private residence where my wife and 3 little children lived.

In July 1990 the Downey, CA Office Of Hearings And Appeals (OHA) was at 11903 Downey Avenue. I was assigned to the Downey OHA, so I bought a house on Downey Avenue. It was less than two miles from my home to the office. I could have walked to work in half an hour. For many months I did not drive to work; I rode a bicycle. I stopped riding the bicycle when several vision impaired claimants almost ran me down in the parking lot. It was safer to drive than to get killed or injured on a bicycle. I was exposed to greater physical threats from routine anonymous claimants coming and going in the parking lot than I was from disgruntled revenge seeking claimants who intended to subject me to physical injury.

In the ALJ Training School in Fredericksberg, VA we told to try to remain anonymous in the field. Judge Tommy D. Capshaw told us to try to keep a low profile. He told us to get rid of the personalized license plates on our cars and to keep unlisted phone numbers. I rented a post office box for my personal mail. Periodicals, like Time and Newsweek magazine and the Christian Science Monitor, came to the office.

I never gave out my home address. My business cards listed the office address as my address. The cards were printed by SSA OHA without my request. Darlene Robertson, the Office Manager at OHA at that time, just came into my office one morning and gave me a box of cards.

I was the only ALJ who lived in Downey; all the other judges lived over 20 miles away in anonymous neighborhoods. David Chase Linehand kept an apartment in Downey, but he lived in San Bernadino, CA.

In about 1995 OHA moved to a new 15 year leased space above the Downey National Bank at 8345 Firestone Boulevard. This was one block off Downey Avenue, but it was one mile closer to my home. My commuting distance to work was cut in half.

This closer proximity to my home frightened me. I was concerned for the safety of my wife and children. All of my children were under 6 years of age. My wife was overly concerned and was frequently cautioning me never to give out our home address. She had seen some of the claimants entering and leaving the office and she was frightened by their appearance. Some of them looked dangerous at first glance.

We received complaints from the management of the bank downstairs that the claimants were disturbing their customers. Often claimants would enter the bank thinking they were at the OHA, which was on the second floor. Many claimants had complained that the Notice of Hearing was deficient was too vauge about the office address. The address in the Notice only gave a street address; it did not contain the suite number. Many claimants came to hearings late because they had had trouble locating the OHA. They had been in the bank downstairs, or they had gone to the Embassy Suites hotel next door.

My wife never allowed me to entertain the staff at our home because she did not want to give out our home address. We had hosted birthday parties for our children where one or two of the office staff had attended, but those were rare. Even though I lived closer to the office than any other judge, I tried to keep home and office as far away from each other as possible.

These were merely precautions. I had no illusions about how precarious our real safety net was. For the first five years I was a judge, our office had no security guard or agent from the Federal Protective Service. For the next ten years the guards in most offices did not search incoming claimants and were not allowed to use a wand to detect concealed metallic objects, such as guns or knives. For the next five years the office management staff appeared to spend so much time harassing the security guard that he spent as much time as possible away from his post avoiding management. Any safety measure could always be circumvented. Every e-mail sent can be retrieved with a few mouse strokes. Most claimants brought along a friend or family member who was a potential threat to the office personnel. One random glance or a photo snapped from a phone-camera at someone's social security number, and that number became a commodity for sale on the streets of Los Angeles. One phone call and our sanctuary could become our killing field. I was prepared to accept that level of risk at the office but not at home.

My next door neighbors were Richard and Sally Randolf. Sally was an elementary school teacher in Pico Rivera, CA. One day without any warning someone walked up to her front door in broad daylight and fired three shots through her front door. She had two children the same ages as my children. They were at home. We never found out what the motive was for the shooting. Fortunately no one was killed. I had the agonizing feeling that they were looking for my home but went to the wrong address. Our house numbers were only three consecutive numbers apart. I still believe that I dodged a bullet that day. To this day, we do not know who or why someone would shoot throngh the front door of a residence on my block. This case remains an "unsolved shooting incident" at the Downey Police Department.

The AP reporter acknowledged that while no judges were harmed this year, there have been past incidents. The first example cited was that of a female judge in the Los Angeles Office of Disability Adjudication and Review (ODAR). She was hit over the head with a chair during a hearing. That is not exactly accurate, but I am familiar with the incident. The ALJ made some fundamental mistakes. The incident was avoidable. The judge deviated too far from standard procedure.

The ALJ in question had been transferred from the Long Beach Office of Hearings and Appeals (OHA) to the Downtown Los Angeles ODAR. She conducted the hearing in a formal manner. She wore a black robe; she sat at the judge's bench; she remained distant and removed from the claimant who was seated at the claimant's table which was below and separated from the judge's bench. Aside from the judge and the court reporter there were only two other people in the hearing room. Those were the claimant and her adult daughter. the claimant was not represented by an attorney and no attorney was present.

The claimant was alleging a mental impairment. She claimed that she could not engage in work on a consistent basis because her mental impairment prevented her from maintaining persistence, concentration, and pace. The ALJ was not convinced and something about her questions and her demeanor must have relayed that message to the claimant and her daughter. The judge was going to deny her claim. The conversational exchanges became heated. So, the ALJ closed the hearing and left the hearing room. Then she made a fundamental error.

The judge left the room, removed her robe, came back to the hearing room, and sat down at the table with the claimant and her daughter. It is not clear why she felt this little friendly chat was necessary. She had already as much as told the claimant that she was not going to win her case. She was not going to receive disability benefits. The conversation became heated. The claimant's daughter became excited and irate. The judge jumped up and tried to leave the hearing room and the daughter picked up a chair and threw it at the judge. This was predictable. The judge lowered the barrier and put herself on the same level with the claimant.

This is not the kind of violence that most judges are afraid of. Most judges would not have put themselves in this kind of a risky situation. This was practically an invitation to precipitate an incident. Moreover, usually the cases are so tightly scheduled, one after another, that most judges would not have had time to have a nice little touchie-feelie chat with a mentally deranged claimant who did not have a lawyer present to represent her.

WASHINGTON – Judges who hear Social Security disability cases are facing a growing number of violent threats from claimants angry over being denied benefits or frustrated at lengthy delays in processing claims.

There were at least 80 threats to kill or harm administrative law judges or staff over the past year — an 18 percent increase over the previous reporting period, according to data collected by the agency.

The data was released to the Association of Administrative Law Judges and made available to The Associated Press.

One claimant in Albuquerque, N.M., called his congressman's office to say he was going to "take his guns and shoot employees" in the Social Security hearing office. In Eugene, Ore., a man who was denied benefits said he is "ready to join the Taliban and hurt some people." Another claimant denied benefits told a judge in Greenville, S.C., that he was a sniper in the military and "would go take care of the problem."

"I'm not sure the number is as significant as the kind of threats being made," said Randall Frye, a judge based in Charlotte, N.C., and the president of the judges' union. "There seem to be more threats of serious bodily harm, not only to the judge but to the judge's family."

Fifty of the incidents came between March and August, including that of a Pittsburgh claimant who threatened to kill herself outside the hearing office or fly a plane into the building like a disgruntled tax protester did earlier this year at the Internal Revenue Service building in Austin, Texas.

A Senate subcommittee is expected to hear testimony on Monday at a field hearing in Akron, Ohio, about the rising number of threats, as well as the status of the massive backlog in applications for disability benefits, which are available to people who can't work because of medical problems.

Nearly 2 million people are waiting to find out if they qualify for benefits, with many having to wait more than two years to see their first payment.

Judges say some claimants become desperate after years of fighting for money to help make ends meet.

"To many of them, we're their last best hope for getting relief in the form of income and medical benefits," said Judge Mark Brown, a vice president of the judge's union and an administrative law judge hearing cases in St. Louis.

While no judges were harmed this year, there have been past incidents: A judge in Los Angeles was hit over the head with a chair during a hearing and a judge in Newburgh, N.Y., was punched by a claimant when he showed up for work.

In January, a gunman possibly upset about a reduction in his Social Security benefits killed a security guard during a furious gunbattle at a Nevada federal courthouse.

About 1,400 administrative law judges handle appeals of Social Security disability claims at about 150 offices across the country. Many are in leased office space rather than government buildings.

Brown said the agency provides a single private security guard for each office building that houses judges. Frye said he has sought more security and a review of the policy that keeps guards out of hearing rooms. He said Social Security Commissioner Michael J. Astrue has promised to look into it.

Social Security Administration spokeswoman Trish Nicasio said the agency continually evaluates the level and effectiveness of office security and makes changes as needed.

"We are taking appropriate steps to protect our employees and visitors while still providing the level of face-to-face service the public expects and deserves," Nicasio said.

Visitors and their belongings are screened before entering hearing offices and hearings room, she said, and reception desks are equipped with duress alarms to notify the guard immediately of any disturbance.

Chief Judge John M. Roll of the U.S. District Court of Arizona was shot and killed on January 8, 2011 by a gunman in front of a Tucson, Arizona Safeway grocery store. He was 63
Judge Roll was appointed by President George H. W. Bush in 1991 and has been chief judge since 2006. His district is part of the sprawling Ninth Circuit, which covers federal courts throughout the West. He served as a state judge and as an assistant United States attorney for Arizona before he was appointed to the federal bench.

Judge London Steverson was appointed by President George H. W. Bush in 1990.

Security Worries Spur Some Judges to Pack Heat, Use 24-Hour Guards

Thursday, October 14, 2010

Social Security Administration Keeps Claimants In The Dark.

Commissioner Michael Astrue

(Commissioner Michael Astrue)

Social Security Administration Keeps Claimants In The Dark.

Today’s unprecedented economic crisis is bringing into sharp focus Social Security’s role as the backbone of the country’s retirement security, as well as the irresponsibility of former President George W. Bush’s policies in regard to this critical program.


Part of the Bush legacy that Astrue has continued are personnel and labor relations policies that hobble agency staff and undermine SSA’s ability to fulfill its duty to the American public. For example, Commissioner Astrue has implemented a policy prohibiting SSA employees from advising SSA claimants regarding their benefit election options. Because benefit election options, such as month of election, impact the eventual amount of benefits received, this prohibition deprives SSA claimants of advice and information

Read More

Tuesday, October 12, 2010



This is the ultimate insider's guide to the Social Security Disability Determination System. This book explains the Five Step Disability Evaluation Process and attempts to explain why the System does not work as it was intended. It describes the rules, regulations, exceptions, and court decisions that determine the outcome of an application for disability benefits. This is not another "how to" book about filing for Social Security disability benefits. This book is about how the system works. It concerns the nature of the Social Security Disability Determination process. Written by a veteran Social Security Judge this book will simplify the process and make the Social Security Disability Process work for you.
Have you ever wondered how to get Social Security Disability benefits or why your application was denied? 
Whether you are an attorney representing claimants or a claimant trying to act as your own representative, this book will show you how to prevail and collect the benefits to which you are entitled. 

Social Security Disability Insurance (SSDI) and Supplemental Security Income (SSI) are the two largest Federal assistance programs that provide financial support to those with disabilities. To qualify for benefits, you must meet specific medical criteria outlined by the Social Security Administration (SSA).


The application process can be extremely complicated and confusing.


Have you ever asked yourself:

Read More

At last a book is available that explains the Social Security Disability Determination Process in plain English.
This is the ultimate insider's guide to the Social Security Disability Determination System. This book explains the Five Step Disability Evaluation Process and attempts to explain why the System does not work as it was intended. It describes the rules, regulations, exceptions, and court decisions that determine the outcome of an application for disability benefits. This is not another "how to" book about filing for Social Security disability benefits. This book is about how the system works. It concerns the nature of the Social Security Disability Determination process. Written by a veteran Social Security Judge this book will simplify the process and make the Social Security Disability Process work for you.

Have you ever wondered how to get Social Security Disability benefits or why your application was denied?

Whether you are an attorney representing claimants or a claimant trying to act as your own representative, this book will show you how to prevail and collect the benefits to which you are entitled.

Social Security Disability Insurance (SSDI) and Supplemental Security Income (SSI) are the two largest Federal assistance programs that provide financial support to those with disabilities. To qualify for benefits, you must meet specific medical criteria outlined by the Social Security Administration (SSA).

The application process can be extremely complicated and confusing.

Have you ever asked yourself:
Who is eligible for Social Security Disability Benefits?

Can I apply for Social Security Disability or SSI?

How could I increase my chance of winning Disability and/or SSI benefits?

How much money would I receive in monthly payments?

Can I work and receive Social Security Disability Payments?

Is my family entitled to Social Security Disability benefits?

What diseases are considered for Social Security Disability benefits and SSI?

Do I have to hire a lawyer?

Billions for War, But Not A Penny For Seniors.

As if voters don't have enough to be angry about this election year, the government is expected to announce this week that more than 58 million Social Security recipients will go through another year without an increase in their monthly benefits.

It would mark only the second year without an increase since automatic adjustments for inflation were adopted in 1975. The first year was this year.

"If you're the ruling party, this is not the sort of thing you want to have happening two weeks before an election," said Andrew Biggs, a former deputy commissioner at the Social Security Administration and now a resident scholar at the American Enterprise Institute.

The cost-of-living adjustments, or COLAs, are automatically set each year by an inflation measure that was adopted by Congress back in the 1970s. Based on inflation so far this year, the trustees who oversee Social Security project there will be no COLA for 2011.

This announcement about Social Security benefits raises more immediate concerns for older Americans whose savings and home values still haven't recovered from the financial collapse: Many haven't had a raise since January 2009, and they won't be getting one until at least January 2012.

"While people aren't getting COLAs they certainly feel like they're falling further and further behind, particularly in this economy," said David Certner, AARP's legislative policy director. "People are very reliant on Social Security as a major portion of their income and, quite frankly, they have counted on the COLA over the years."

Social Security was the primary source of income for 64 percent of retirees who got benefits in 2008, according to the Social Security Administration. A third relied on Social Security for at least 90 percent of their income.

A little more than 58.7 million people receive Social Security or Supplemental Security Income. The average Social Security benefit is about $1,072 a month.

Seniors prepared to cut back on everything from food to charitable donations to whiskey as word spread Monday that they will have to wait until at least 2012 to see their Social Security checks increase.

The government is expected to announce this week that more than 58 million Social Security recipients will go through a second straight year without an increase in monthly benefits. This year was the first without an increase since automatic adjustments for inflation started in 1975.

"I think it's disgusting," said Paul McNeil, 69, a retired state worker from Warwick, R.I., who said his food and utility costs have gone up, but his income has not. He lamented decisions by lawmakers that he said do not favor seniors.

"They've got this idea that they've got to save money and basically they want to take it out of the people that will give them the least resistance," he said.

Cost-of-living adjustments are automatically set by a measure adopted by Congress in the 1970s that orders raises based on the Consumer Price Index, which measures inflation. If inflation is negative, as in 2009 and 2010, payments remain unchanged.

Still, seniors like McNeil said they'll be thinking about the issue when they go to vote, and experts said the news comes at a bad time for Democrats already facing potentially big losses in November. Seniors are the most loyal of voters, and their support is especially important during midterm elections, when turnout is generally lower.

"If you're the ruling party, this is not the sort of thing you want to have happening two weeks before an election," said Andrew Biggs, a former deputy commissioner at the Social Security Administration and now a resident scholar at the American Enterprise Institute.

At St. Andrews Estates North, a Boca Raton retirement community, seniors largely took the news in stride, saying they don't blame Washington for the lack of an increase. Most are also collecting pensions or other income, but even so, they prepared to tighten their belts.

Bette Baldwin won't be able to travel or help her children as much. Dorcas Eppright will give less to charity. Jack Dawson will buy cheap whiskey instead of his beloved Canadian Club.

"For people who have worked their whole life and tried to scrimp and save and try to provide for themselves," said Baldwin, a 63-year-old retired teacher, "it's difficult to see that support system might not sustain you."

Baldwin and her husband mapped out their retirements, carefully calculating their income based on their pensions and Social Security checks. Trouble is, they expected an annual cost-of-living increase.

When we cut back, we're cutting back on niceties," Baldwin said. "But there are other people that don't have anything to cut back on. They're cutting back on food and shelter."

Many at St. Andrews said the cost-of-living decision won't affect who they vote for next month. But seniors tied the Social Security issue to what they see as a larger societal problem with debt, entitlements and hopefulness for the future.

"I'm kind of glad in a way," Stella Wehrly, an 86-year-old retired secretary, said of the freeze. "One thing depends on the other and when people aren't working there's not enough people feeding into the Social Security system."

Wehrly and her husband, Hank, said curtailing government spending is necessary to maintain the Social Security system.

"We have a generation now that we're not going to leave a very good legacy for," she said.

Jack Dawson, 77, said the freeze is the right move considering the state of the government and the American economy.

"Who would be surprised what's happened?" he asked. "I feel this is the right decision in light of the malaise."

More than 58.7 million people rely on Social Security checks that average $1,072 monthly. It was the primary source of income for 64 percent of retirees who got benefits in 2008; one-third relied on Social Security for at least 90 percent of their income.

At the Phoenix Knits yarn shop in Phoenix, 73-year-old owner Pat McCartney said she already worries about paying for utilities, groceries and gas. Not having the increase makes her worry even more.

"If I have any major expense, I don't know what I'll do," McCartney said while helping customers with their knitting. "I live on Social Security."

In Kansas City, Mo., Georgia Hollman, 80, said Social Security is her sole source of income. She would have liked a bigger check, but said she's grateful for what she gets.

"There isn't nothing I can do about it but live with it," she said. "Whatever they give us is what we have to take. I'm thankful we get that little bit."

Advocates for seniors argue the Consumer Price Index doesn't adequately weigh the costs that most affect older adults, particularly medical care and housing.

"The existing COLA formula does not account for the economic reality of the true costs that most seniors faced," said Fernando Torres-Gil, director of UCLA's Center for Policy Research on Aging and the first person appointed to the governmental post of assistant secretary for aging, during the Clinton administration.

Still, Torres-Gil said the political reality is different, and many feel seniors are lucky to have their checks determined by the CPI, instead of some new formula that might make it even harder to secure a raise.

"We may just lucky to keep the current index," he said.

Friday, October 8, 2010

Social Security Checks Sent to The Dead.

SOCIAL SECURITY SENT 72,000 Checks To Dead People.

A new report from the Social Security Office of the Inspector General says that the agency sent nearly 89,000 checks for $250 each to people who were dead or in prison. The payments were part of the American Recovery and Reinvestment Act of 2009. Of those who got checks, 71,668 – which totaled $18 million – went to people who had died. Incarcerated people received 17,348 checks, which added up to $4.3 million.

Some inmates were eligible to receive the payments because they'd been receiving Social Security before being locked up.

About half of the payments have been returned, but the Inspector General does not have the authority to attempt to find and take back the balance of them.

As part of the Obama's stimulus plan, a check was sent to a Maryland woman who died more than 40 years ago.

The woman's son, 83-year-old James Hagner, said he got the surprise when he checked his mailbox late last week.

"It shocked me and I laughed all at the same time," Hagner said. "I don't even expect to get one my own self, and I get one for my mother for 43 years ago?"

His mother, Rose, died on Memorial Day in 1967. Hagner said he'd like to frame it and hang it on his wall.

"I just want to keep it as a souvenir, that's all. I'll never cash it," Hagner said.

The reported noted that the Administration was not entirely at fault:

These conditions occurred because SSA (1) was unaware of beneficiary deaths and incarcerations that were reported after it had certified the ERPs, (2) relied on questionable data in its payment records, and (3) did not review all available records, such as the Numident for death information and Prisoner Update Processing System (PUPS) for beneficiary incarcerations.

In response to the report, Social Security Administration press person Mark Lassiter said: "Inaccurate payments are unacceptable".

That statement is not likely to put down the firestorm of criticism that will come from the press, the Congress and taxpayers. The sums of the mistake are relatively small compared to the cost of most programs, but as there is more talk about the damage that the deficit will have on the economy and future generations. The inefficiency of the federal government will come under more scrutiny.

The release of the information could hardly come at a worse time. Republicans are likely to seize on the report as an example of what is wrong with a federal government controlled by Democrats. It is the kind of information that people can hardly help but talk about incessantly.

The Social Security Administration has continued to pay millions of dollars in benefits to dead Americans, and other elderly U.S. residents are at risk of losing badly needed aid because they’re improperly recorded as deceased, federal investigators warn.

The consequences of either bureaucratic error can be severe.
“The addition of erroneous death entries can lead to benefit termination, cause severe financial hardship and distress to affected individuals,” investigators with the Social Security Administration’s Office of Inspector General noted in the report, which was quietly released recently.

The mistakes cost taxpayers and individual beneficiaries in different ways. Taxpayers are losing money when benefits are paid to the deceased. Individuals get into trouble when they’re prematurely pronounced dead.

In Southern California and elsewhere last year, investigators analyzed 305 Social Security beneficiaries who were recorded as deceased in their Social Security Administration files. At least 140 of them were still alive.

All told, investigators say, more than 6,000 current Social Security beneficiaries are recorded as being deceased.

In 1962, Lockheed Corp. charged the government $34,560 for 54 toilet covers or $640 each. The covers were meant for use on Navy ships. The story still circulates around Washington as an example of government waste and lack of oversight of expenses. To the legend of the toilet seat can now be added the legend of the checks to the dead.

Thursday, October 7, 2010

MSPB FY 2009 Appeals Processing Results.

MSPB FY 2009 Appeals Processing Results

Just in case anyone was interested -

The track record of your odds at getting an adverse agency decision reversed before the Merit Systems Protection Board. (MSPB).

The 2009 stats were release, and here is what they say:

Of the total of 7,998 decisions filed, only 174 resulted in the MSPB overturning the decision of the Agency.

The MSPB recently published its FY 2009 Annual
Report containing summaries of significant Board
decisions and detailed case processing results. The MSPB
issued 7,998 total decisions in FY 2009.

Significant Board decisions addressed issues such as MSPB appeals
procedures, alternative personnel systems, discrimination,
retirement, suitability, the Whistleblower Protection
Act, and veterans' rights under the Veterans
Employment Opportunities and Uniformed
Services Employment and Reemployment
Rights Acts.

MSPB's regional and field offices issued
almost 7,000 decisions with an average
processing time of 83 days. Of those, almost
56 percent (3,485 cases) were dismissed—
usually for lack of jurisdiction or timeliness.
MSPB's settlement and mediation programs provided an
opportunity for the parties to reach mutually acceptable
resolutions to their cases. As a result, almost 62 percent
of the remaining 2,780 appeals (1,720 cases) were settled
by the parties, meaning that MSPB did not rule on those
cases. Of the 1,060 appeals that were adjudicated on the
merits, 81 percent (859 cases) of the agencies' decisions
were affirmed
, 16 percent (174 cases) were reversed and 2
percent (23 cases) were mitigated.

At headquarters, the Board issued 1,027 decisions
with an average processing time of 94 days or less. Of
the 850 decisions on Petition for Review (PFR) of Initial
Decisions issued by the Board, 79 percent (668 cases)
were denied, almost 10 percent (80 cases) were granted,
almost 6 percent (47 cases) were denied but reopened by
the Board, and less than 7 percent (55 cases)
were settled or dismissed. Of the 127 cases
that were reviewed by the Board, 49 percent
(62 cases) were remanded for reconsideration,
35 percent (44 cases) were affirmed, 7 percent
(9 cases) were reversed, and the remaining 9
percent of cases had other outcomes.

In addition, MSPB continues to issue legally supportable decisions, as evidenced
by the fact that the U.S. Court of Appeals for the Federal
Circuit left unchanged
(dismissed or affirmed) over
90 percent of MSPB decisions that were appealed to
the Court. These results indicate that MSPB continues
to ensure that the Federal workforce has access to lots of
due process but very little justice

Social Security: Example of gov't rigor mortis.

Social Security: Example of gov't rigor mortis

Keeping government limited is a practical approach to governing that opens the door to growth and prosperity.


Consider a fundamental difference between business and government. Any businessman operating successfully is in touch with reality, with change, and acts with speed to make adjustments necessary to survive.

Businesses are not democracies, so a CEO can execute what needs to be done on the spot.

Government is the opposite. It is allergic to change. They say government programs are like headless nails. Once in, they're impossible to get out. Programs produce interests who then fight change.

So it should be obvious that if we want a nation that is vibrant, in touch with reality, changing as it needs to in a timely way, the reach of government must be limited.

Consider Social Security.

With annual expenditures almost 5 percent of the total U.S. budget, it's the single largest government spending program.

With a program of this magnitude, that impacts practically every working American, you'd think it would be a priority to keep it healthy and in tune with the times.

But it's just the opposite. It's the so called "third rail." Politicians don't want to touch it or talk about it. They don't want to upset anyone with the truth that the system is not just broken, but way out of touch with today's realities.

Social Security passed in 1935. Although there have been changes in the way of tax increases and expansions of the program, Social Security is essentially the same system as was passed 75 years ago.

Can you imagine any business still using a system that is 75 years old?

It's really older. If you go on the website of the Social Security Administration, it will tell you that the idea for Social Security originated with German Chancellor Otto Von Bismarck in 1889.

Here's just a few ways that our world has changed since 1935:

Our population has aged. In 1935, there were 16 working Americans paying payroll taxes to cover each retired American. Today there are only three working per retiree.

Americans are retiring earlier and living longer. In 1950, the median male retirement age and male life expectancy were about the same – 66. By 2005, the median retirement age for men was under 62 and the median male life expectancy was over 75.

Work habits and attitudes have changed dramatically. In 1973, 50 percent of the private sector male work force had been with the same employer for at least 10 years. By 2006, this dropped to 35 percent. The percentage with the same employer for at least 20 years dropped from 35 percent in 1973 to 20 percent in 2006.

We live today in an age of the Internet, global markets and increased individual mobility.

And the promise we get from our leaders is that they will save and preserve a system that was conceived 120 years ago and enacted here 75 years ago. This is leadership?

Not only is our Social Security system unsuited to our times, it is bankrupt. It went into a deficit situation this year and its overall unfunded liabilities – the total amount promised less the total amount for which there is funding – is almost $20 trillion.

In a recent Gallup Poll, 60 percent of working Americans said they don't expect to get their Social Security benefits. And in a recent Pew poll, 58 percent favored the idea of individuals keeping a portion of their Social Security taxes and investing it in a private retirement account.

We'll hear from Washington that to save this dinosaur, we must pay more taxes and retire later. In other words, we'd have a better deal keeping our taxes and putting them in our mattress.

Wake up, Washington. It's not 1935. It's 2010. If we don't get leaders who'll look reality in the eye, tell us the truth and retrofit out nation for the time in which we live, we won't have a nation.

(© 2010 by Star Parker)

The Merit System Protection Board Never Finds Discrimination.

MSPB Continues to Refine Discrimination Analysis

It’s been a running joke, and for the employee’s bar not so much of a joke, that federal sector employment lawyers, HR folks, etc., really didn’t need to spend any time learning about the MSPB’s view of discrimination law for the simple reason that the Board never finds discrimination anyway. Could that be about to change? We’re still not seeing findings of discrimination from the MSPB, but suddenly it has an increased focused on the analysis of discrimination cases by its administrative judges. See Disparate Treatment by Any Other Name, Vol. I, Issue XV (2010).

The latest addition to the Board’s discrimination repetoire is Hodge v. Department of Homeland Security, 2010 MSPB 190 (September 15, 2010). In Hodge, the Board reversed the indefinite suspension of a Deportation Officer finding that an investigation into alleged misconduct was not sufficient reason to sustain the suspension where the agency did not rely on the crime provision of 5 USC 7513(b)(1). Having already reversed the suspension, the Board then went on to analyze the appellant’s claim of discrimination and the finding of the administrative judge that the appellant had failed to present a prima facie case of discrimination.

Because the case had gone to hearing, the Board found that the judge erred in analyzing whether the appellant had presented a prima facie case. Instead, the Board found that the judge should have simply proceeded to analyze whether the appellant had established that the agency’s reason for the indefinite suspension was pretextual. The Board cites Jackson v. U.S. Postal Service, 79 MSPR 46 (1998) for the proposition that when evidence has already been taken on a discrimination claim, it is error to analyze whether the appellant has presented a prima facie case and the analysis should proceed directly to the issue of pretext. The Board’s certainly correct about its own case law, but the reality is that the Board is simply following the dictates of the U.S. Supreme Court in U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711 (1983).

As Jackson duly notes, in Aikens the Supreme Court found that “[w]here the defendant has done everything required of him if the plaintiff had properly made our a prima facie case, whether the plaintiff really did so is no longer relevant[;] [t]he district court has before it all the evidence it needs to decide whether ‘the defendant intentionally discriminated against the plaintiff.’”

Of course, none of this helped the appellant in Hodge as the Board found there was insufficient evidence of pretext. The Board found:

[T]he appellant allegedly was involved in an incident with New Orleans police officers wherein she challenged their authority when they asked her to leave a car wash, resisted arrest, refused their attempts to handcuff her, and struck one of them in the face with her fist. IAF, Tab 4, Subtab 4(d) at 1. The misconduct of the three comparator employees consisted, respectively, of: being intoxicated and firing his weapon; having an affair with the wife of a man who was the subject of an investigation; and being the subject of domestic violence charges filed against him by the comparator’s wife. See Hearing Transcript at 120-21, 124. The conduct of the comparator employees clearly conflicts less directly with the duties of a law enforcement officer than the appellant’s direct and public confrontation with other law enforcement officers.

So, maybe we’re going to start seeing findings of discrimination out of the Board. On the other hand, one has to wonder. Is the conduct of the appellant in Hodge really less compatible with being a law enforcement than getting drunk and firing a weapon, having an affair with the spouse of someone who’s the subject of an investigation, and being charged with domestic violence? Hmm . . . perhaps it’s a good thing that the Board doesn’t get to hire law enforcement officers and only gets to decide on their discipline.
(By Ernest Hadley)

FELTG is a limited liability company EIN # 27-2532251, DUNS # 007097332
All content © 2010 by Federal Employment Law Training Group - Wellfleet, MA

Social Security Administration Wrongfully Withheld $500 Million in Disability Benefits

$500 Million in Suspended Disability Benefits Returned
The Social Security Administration wrongfully denied eligible beneficiaries because they believed that the applicants were wanted felons.

A federal court that decided for Martinez vs. Astrue ordered the Social Security Administration to return $500 million worth of suspended benefits to approximately 250,000 beneficiaries. The beneficiaries, who were wrongly identified as felons, were deemed ineligible through an arrest warrant database. They were consequently denied of their benefits for the last 10 years.

Gerald A. McIntyre, the lead attorney for the National Senior Citizen Law Center, logged the class action after discovering that many beneficiaries were being cut off when the SSA erroneously applied a 1996 law which prevented fleeing felons from collecting benefits. The suit was initiated in 2008 when Rosa Martinez, 53, a resident of Redwood City, CA, stopped receiving disability assistance because of a 1980 arrest warrant filed in Miami, FL. However, Martinez has never visited Miami. Martinez said, “They just told me I won’t be getting any more Social Security because I committed a crime in 1980...I was in a state of shock. And since then I became really sad and upset because I didn’t know what was happening to me. I was depending on this money.” Martinez became the lead plaintiff in the class suit. Likewise, many of the other victims shared similar names with known felons; others had warrants for minor infractions.

The SSA's warrant filtering procedure was supposed to ensure that fleeing felons cannot get disability benefits. McIntyre, on his reproach, said, “The vast majority of class members were not fleeing at all; many never knew that criminal charges were pending against them let alone that a warrant had been issued.” McIntyre also criticized the SSA's method of matching the first and last names of the beneficiaries with Social Security Numbers. “If they cannot discover a match, they will dig by using dates of birth.” The policy is still subsisting in selected parts of the United States.

SSA Commissioner Michael Astrue announced that they are currently mailing notices to the victims, informing them that they may reapply for benefits and submit a disability claim within the next six months. Under the terms of the settlement, in which the administration admitted no wrongdoing, the government is only repaying benefits owed, and will not be paying any punitive damages for loss of income or suffering.

Social Security Disability Insurance (SSDI) is a federal insurance program of the United States government that is funded by payroll taxes and is designed to provide an income for disabled individuals who are unable to work. If you are one of its rightful beneficiaries who received unfair or negative treatment, never sleep on your rights. Visit for more information about SSDI.

Thursday, September 30, 2010

Tony Curtis Received Cultural Diplomacy Award Same Day As Judge Steverson.

Tony Curtis died September 30, 2010 at the age of 85. He will be remembered as both a Hollywood heartthrob and an actor with a gift for comedy. As the author of his own story he was met with mixed reviews. He was the son of Hungarian immigrants. On April 23, 2009 at about 5:00 PM at the American Embassy in Budapest, Hungary he was awarded the Cultural Diplomacy Award by Ambassador April Foley with Jeffrey Levine, the Charge d'Affaires, and Carolynn Glassman, the Cultural affairs Officer at the Embassy.

Mr. Curtis was not the only person to receive the Cultural Diplomacy Award that day in Hungary. Earlier in the day at the American Corner in Veszprem, Hungary Judge London Steverson had been presented with a Cultural Diplomacy Award. It was the opening day of the annual America Week Celebration in Hungary. The highlight of the day was the official opening of the Steverson Book Collection at the Veszprem Public Library. The Steverson Collection was a donation of over 5,000 books to the American Embassy and the people of Hungary from Judge Steverson's own personal collection. Judge Steverson's wife was born and raised in Veszprem, Hungary.

Marjorie Kehe of the christian Science Monitor had this to say about this talented Hungarian-American. Curtis wrote his own life story twice, once in "Tony Curtis: The Autobiography" (1993) and then again in "American Prince: A Memoir" (2008).

In general, "The Autobiography" was better received. Library Journal wrote, "This is Tony Curtis's story in his own words, and it is a corker. His depiction of a boyhood as a poor New York City street kid ... is moving as well as philosophical and is a recurring theme throughout his life and remarkably diverse career.... This is a literate, first-class "star" autobiography, frank and absorbing but not for the prudish."

Publishers Weekly, however, was tougher on Curtis, commenting that,"If Curtis's vanity didn't interfere, one could more readily sympathize with the man as a survivor of a mean childhood and the drug addiction from which he is recovering. Unfortunately, he blames most of his troubles on others, beginning with his parents."

USA Today said of "An American Prince" that it was "[f]illed with fond recollections of [Curtis’s] friendships with the famous and powerful but punctuated, too, by harsh words for Hollywood legends he says did him wrong…. Curtis spares few intimate details about his years as a Hollywood lothario, including his teenage affair with a redheaded, ponytailed Marilyn Monroe.”

Most readers, however, seemed to feel that while Curtis's recounting of his childhood in a tough Lower East Side Manhattan neighborhood (the son of Hungarian immigrants, he didn't learn to speak English till he was 5) was absorbing, Curtis's bragging about his conquests of the opposite sex (he was married five times and had many affairs) was unappealing. ("Fun for a while, then kerplunk .... falls, like a promising cake gone bad," wrote one Amazon reader.)

In the end, however, it is not Tony Curtis the writer or even the man who will be remembered as much as it will be Tony Curtis the actor, star of "Sweet Smell of Success" (1957), "The Defiant Ones" (1958), "Some Like It Hot"(1959), and "Spartacus" (1960). And perhaps that would have been fine with the man who wrote, in "American Prince," that “All my life I had one dream and that was to be in the movies.”

Monday, September 27, 2010

Assistant U. S. Attorney Commits Suicide.

A Justice Department lawyer under investigation for possible misconduct in the prosecution of former senator Ted Stevens of Alaska committed suicide over the weekend, the law firm representing him confirmed.

Nicholas A. Marsh, 37, was one of several Justice lawyers under investigation by a special prosecutor for possible legal improprieties that last year led a judge to vacate Stevens's conviction in a corruption case. A spokeswoman for Marsh's lawyer, Robert Luskin, confirmed Monday that Marsh had killed himself, but offered no further details.

"Our deepest sympathies go out to Nick's family and friends on this sad day," Assistant Attorney General Lanny A. Breuer said in a statement, without commenting on how Marsh died. "The Department of Justice is a community, and today our community is mourning the loss of this dedicated young attorney."

Marsh was among several lawyers on the Justice team that prosecuted Stevens, a Republican. Stevens was defeated in his reelection bid shortly after his 2008 conviction and died Aug. 9 in a plane crash in Alaska.

(By Paul Duggan)

Friday, September 17, 2010

Judge London Steverson

Judge London Steverson
London Eugene Livingston Steverson (born March 13, 1947) was one of the first two African Americans to graduate from the United States Coast Guard Academy in 1968. Later, as chief of the newly formed Minority Recruiting Section of the United States Coast Guard (USCG), he was charged with desegregating the Coast Guard Academy by recruiting minority candidates. He retired from the Coast Guard in 1988 and in 1990 was appointed to the bench as a Federal Administrative Law Judge with the Office of Hearings and Appeals, Social Security Administration.

Early Life and Education
Steverson was born and raised in Millington, Tennessee, the oldest of three children of Jerome and Ruby Steverson. At the age of 5 he was enrolled in the E. A. Harrold elementary school in a segregated school system. He later attended the all black Woodstock High School in Memphis, Tennessee, graduating valedictorian.
A Presidential Executive Order issued by President Truman had desegregated the armed forces in 1948,[1] but the service academies were lagging in officer recruiting. President Kennedy specifically challenged the United States Coast Guard Academy to tender appointments to Black high school students. London Steverson was one of the Black student to be offered such an appointment, and when he accepted the opportunity to be part of the class of 1968, he became the second African American to enter the previously all-white military academy. On June 4, 1968 Steverson graduated from the Coast Guard Academy with a BS degree in Engineering and a commission as an ensign in the U.S. Coast Guard.
In 1974, while still a member of the Coast Guard, Steverson entered The National Law Center of The George Washington University and graduated in 1977 with a Juris Doctor of Laws Degree.

USCG Assignments.
Steverson's first duty assignment out of the Academy was in Antarctic research logistical support. In July 1968 he reported aboard the Coast Guard Cutter (CGC) Glacier [2] (WAGB-4), an icebreaker operating under the control of the U.S. Navy, and served as a deck watch officer and head of the Marine Science Department. He traveled to Antarctica during two patrols from July 1968 to August 1969, supporting the research operations of the National Science Foundation's Antarctic Research Project in and around McMurdo Station. During the 1969 patrol the CGC Glacier responded to an international distress call from the Argentine icebreaker General SanMartin, which they freed.
He received another military assignment from 1970 to 1972 in Juneau, Alaska as a Search and Rescue Officer. Before being certified as an Operations Duty Officer, it was necessary to become thoroughly familiar with the geography and topography of the Alaskan remote sites. Along with his office mate, Ltjg Herbert Claiborne "Bertie" Pell, the son of Rhode Island Senator Claiborne Pell, Steverson was sent on a familiarization tour of Coast Guard, Navy and Air Force bases. The bases visited were Base Kodiak, Base Adak Island, and Attu Island, in the Aleutian Islands.[3]
Steverson was the Duty Officer on September 4, 1971 when an emergency call was received that an Alaska Airlines Boeing 727 airline passenger plane was overdue at Juneau airport. This was a Saturday and the weather was foggy with drizzling rain. Visibility was less than one-quarter mile. The 727 was en route to Seattle, Washington from Anchorage, Alaska with a scheduled stop in Juneau. There were 109 people on board and there were no survivors. Steverson received the initial alert message and began the coordination of the search and rescue effort. In a matter of hours the wreckage from the plane, with no survivors, was located on the side of a mountain about five miles from the airport. For several weeks the body parts were collected and reassembled in a staging area in the National Guard Armory only a few blocks from the Search and Rescue Center where Steverson first received the distress broadcast.[4]. Later a full investigation with the National Transportation Safety Board determined that the cause of the accident was equipment failure.[5]
Another noteworthy item is Steverson's involvement as an Operations Officer during the seizure of two Russian fishing vessels, the Kolevan and the Lamut for violating an international agreement prohibiting foreign vessels from fishing in United States territorial waters. The initial attempts at seizing the Russian vessels almost precipitated an international incident when the Russian vessels refused to proceed to a U. S. port, and instead sailed toward the Kamchatka Peninsula. Russian MIG fighter planes were scrambled, as well as American fighter planes from Elmendorf Air Force Base before the Russian vessels changed course and steamed back to Anchorage, where a U.S. Attorney was waiting to prosecute the vessels for the violations of fishing treaties.
Because of his icebreaker experience, Steverson was later made the Seventeenth District's first Ice Operations Officer. With the increased activity at Point Barrow and on the North Slope of Alaska brought on by the discovery of the vast oil reserves, more Coast Guard icebreakers were making patrols North of the Bering Sea, where icebreaking is necessary.
The Coast Guard did not have a separate Judge Advocate General's Corp (JAG). Coast Guard lawyers were called "legal specialists". These law specialists were line officers and could rotate out of the regular legal billets. Frequently these tours of duty out of specialty were in law related areas. Steverson served one such four year tour of duty as the Chief Marine Investigating Officer for the Marine Inspection Office in Battery Park, New York from 1982 to 1986. This job was similar to that of a city prosecutor. With a staff of ten investigating officers, he would investigate marine disasters for negligence and causes of action. Any marine personnel found to have violated a marine safety law would be charged and tried before a Coast Guard administrative law judge at the World Trade Center. In the case of a major marine disaster with multiple loss of life, a formal Board of Inquiry would be convened under the direction of the National Transportation Safety Board (NTSB). These Inquiries often would result in promulgation of new marine safety regulations under Title 46 Code of Federal Regulations (CFR). One such incident was the Case of The Joan LaRie III, a charter fishing vessel that sank of the coast of New Jersey on October 24, 1982. [6][7][8]

In July 1972 Steverson was reassigned from Alaska to Washington, D.C. to become the Chief of the newly formed Minority Recruiting Section of the USCG, and was charged with working toward desegregating the nearly all-white USCG, starting with the United States Coast Guard Academy.
From 1876 until 1962 the Academy had not admitted any African-American cadets. One graduated in 1966, two graduated in 1968 (including Steverson) and one graduated in 1970. After that none were admitted until Steverson was placed in charge of the national recruiting effort. As the second minority cadet to enter and graduate from this institution, Steverson had obvious expertise in this endeavor.
He traveled the country looking for qualified minority high school students who could compete for admission. Since the Coast Guard Academy is the only one of the United States military academies that does not require a Congressional appointment, and admission is strictly on the basis of the Scholastic Aptitude Test with additional consideration of extra-curricular involvement, minority applicants stood a better chance of being admitted to the Coast Guard Academy than to Annapolis, West Point or the Air Force Academy.
His efforts were rewarded in 1973 when 28 Black cadets were sworn into the Class of 1977, and again in 1974 when 20 Black cadets were admitted as part of the Class of 1978. It was from these cadets that the Coast Guard's first African-American officers of flag rank were to come in the 1990s; officers such as Admiral Joseph Jones, Admiral Errol Brown and Admiral Manson K. Brown.
While Lieutenant Steverson was charged first and foremost with recruiting cadets for the Academy (because that is where the bulk of the career officers would come from), he was also requested to find minority college graduates who were willing receive direct commissions as lawyers and as aviators. These officers were already college graduates and had no need to attend the four year Academy, instead received a three month orientation at the Coast Guard Officer Training Center. He recruited several people from the Vanderbilt University Law School.
After serving two years in this position, he was replaced by the Academy's first graduate from Guam, Juan Tudela Salas.

He next worked as a Law Specialist in the 12th Coast Guard District Office, San Francisco, California and as an Assistant U. S. Attorney for the collection of Civil Penalties under the Federal Boating Safety Act from 1979 to 1982. An Assistant District Legal Officer, he was required to defend as well as prosecute military members who had been charged with violations of the Uniform Code of Military Justice. Occasionally he was asked to represent other officers in administrative actions involving sexual harassment and discrimination. One such case was the Case of Christine D. Balboni against the Department of Transportation and the United States Coast Guard (DOT Case No. 82-177). Ensign Balboni was one of the first female graduates of the Coast Guard Academy. She graduated in the Class of 1981 and was assigned to the Coast Guard Cutter RUSH, a high endurance law enforcement vessel stationed in Alameda, California. She filed a formal complaint of sexual harassment against three senior officers on board the RUSH. She alleged that false special fitness reports had been written concerning her and that the captain of the ship had requested her immediate transfer off the ship long before her normal rotation date. After no other lawyer would take her case, Commander Ronald Mathews, Chief of The 12th District Legal Office, assigned Lieutenant Commander Steverson to represent Ensign Balboni in a formal departmental administrative hearing before a federal administrative law judge. The charges made by Ensign Balboni were determined to be valid. The relief granted was to have the false special fitness reports removed from her service record and destroyed. She was promoted to the next higher rank. Her career was saved. No disciplinary action was taken against the offending officers.[10][11]
He became the Chief of the Investigating Division at the Marine Inspection Office New York City. In 1986 he was detailed to the National Narcotics Border Interdiction System under the Office of Vice President at the time, George H. W. Bush.
When he retired in June 1988 he became the first African-American Coast Guard Academy graduate to retire as a regular line office from the service, and held the rank of Lieutenant-Commander during his last 10 years of service.
He retired to Dumont, New Jersey and practiced law in New York, with a focus on family law and defending Coast Guardsmen accused of federal crimes. He is a member of the New York State, New York City, and Tennessee Bar Associations.
In July 1990 he was appointed a federal administrative law judge by President George W. Bush. He was assigned to the Ninth Region of the Social Security Office of Hearings and Appeals in California. [12]
He was a conservative Republican and was targeted for his political views.
In April 2009 he retired from his United States Administrative Law Judge Appointment. He devoted himself to philanthropic endeavors. The Steverson Collection at and the Steverson Collection Book Club were his major attempts to improve literacy and to spread American culture in the non-English speaking countries of Europe.

The Cultural Diplomacy Award was given to Judge Steverson in April 2009 by the United States Ambassador to Hungary for helping create "a foundation of trust" with the people, which can be built on to reach political, economic, and military agreements; and that combats the notion that Americans are shallow, violent, and godless. He helped to affirm that Americans have such values as family, faith, and the desire for education in common with others; he helped to create a relationship with the people, which will endure beyond changes in government; he helped to reach influential members of the society, who could not be reached through traditional diplomatic functions; and, he donated a large collection of new, used, and rare English books to the American Corners of Hungary.
The State Department Cultural Diplomacy Award is designed to honor distinguished representatives of American culture whose efforts and artistry advance America's goals of mutual understanding and the deepening of friendship between the United States and others.
Since his appointment by President George H. W. Bush in 1990 as federal administrative judge to the Ninth Region of the Social Security Office of Hearings and Appeals, Judge Steverson and family have resided in Downey City, CA, where he was president of the Downey Sister City Association for seven years, and an International Peace Ambassador.

See also
Black Cadets at the Coast Guard Academy
[edit] References
^ Truman Library - Executive Order 9981
^ Attu Homepage
^ DCA72AZ003
^ Aviation Disasters Crashes
^ Missing Body Is Found In Jersey Boat Sinking - New York Times
^ Info about Juan Tudela Salas
^ Transitions - The Mason Spirit - George Mason University
^ Search Results - THOMAS (Library of Congress)
[edit] External links
Integration of the Armed Forces 1940-1965, chapter 20 Limited Response to Discrimination - includes info about President John F. Kennedy's personal involvement with the first attempts to desegregate the USCG Academy, which was a direct cause of LondonSteverson's admission into the Academy.
USCG history page - See of this page starting with caption for picture of the Lamut (about 2/3 the way down the page).
Photo of the judge in robes on the bench

Wednesday, August 18, 2010

Americans Have A Constitutional Right To Lie.

PASADENA, Calif.(AP) A three-year-old federal law that makes it a crime to falsely claim to have received a medal from the U.S. military is unconstitutional, an appeals court panel in California ruled 17 August 2010.

The decision involves the case of Xavier Alvarez of Pomona, Calif., a water district board member who said at a public meeting in 2007 that he was a retired Marine who received the Medal of Honor, the nation's highest military decoration.

Alvarez was indicted in 2007. He pleaded guilty on condition that he be allowed to appeal on First Amendment grounds. He was sentenced under the Stolen Valor Act to more than 400 hours of community service at a veterans hospital and fined $5,000.

A panel of the 9th U.S. Circuit Court of Appeals sided with him in a 2-1 decision Tuesday 17 August, agreeing that the law was a violation of his free-speech rights. The majority said there's no evidence that such lies harm anybody, and there's no compelling reason for the government to ban such lies.

The dissenting justice insisted that the majority refused to follow clear Supreme Court precedent that false statements of fact are not entitled to First Amendment protection.

The act revised and toughened a law that forbids anyone to wear a military medal that wasn't earned. The measure sailed through Congress in late 2006, receiving unanimous approval in the Senate.

Dozens of people have been arrested under the law at a time when veterans coming home from wars in Afghanistan and Iraq are being embraced as heroes. Many of the cases involve men who simply got caught living a lie without profiting from it. Almost all the impostors have been ordered to perform community service.

The U.S. Attorney's Office in Los Angeles said it was deciding whether to appeal Tuesday's ruling.

Monday, August 9, 2010

Rule of Law or Rule of Men?

Is America still a nation of laws where the Rule of Law governs, or do the facts now govern? Do the appellate courts now focus on the facts and ignore the law?

Prop 8 Judge's Personal Life Debated After Ruling
(by Lisa Leff, AP, Aug. 6, 2010, SF, Ca.)
-- The federal judge who overturned California's same-sex marriage ban this week is a Republican who once came under fire for his membership to a powerful all-male club that had only recently allowed Blacks to join.

But after Chief U.S. Judge Vaughn Walker struck down the voter-approved ban known as Proposition 8, he became something else in the minds of some: a gay activist.

Rumors have circulated for months that Walker is gay, fueled by the blogosphere and a San Francisco Chronicle column that stated his sexual orientation was an "open secret" in legal and gay activism circles.

Walker himself hasn't addressed the speculation, and he did not respond to a request for comment by The Associated Press. Lawyers in the case, including those defending the ban, say the judge's sexuality - gay or straight - was not an issue at trial and will not be a factor on appeal.

Judge Vaughn R. Walker is the U.S. Chief Judge for the Northern California district.

But that hasn't stopped a public debate that exploded in the wake of the 66-year-old jurist's ruling. Most of the criticism has come from opponents of same-sex marriage.

"Here we have an openly gay federal judge, according to the San Francisco Chronicle, substituting his views for those of the American people and of our Founding Fathers who, I promise you, would be shocked by courts that imagine they have the right to put gay marriage in our Constitution," said Maggie Gallagher, chairwoman of The National Organization for Marriage, a group that helped fund Proposition 8.

In response, the Gay and Lesbian Victory Fund, a political action committee for gay candidates, launched an online petition accusing Gallagher's group of "gay-baiting."

But the debate raises the question: Why is sexuality different from other personal characteristics judges posses? Can a female judge rule on abortion issues? A Black judge on civil rights?

"The evidence shows that, by every available metric, opposite-sex couples are not better than their same-sex counterparts; instead, as partners, parents and citizens, opposite-sex couples and same-sex couples are equal," Walker wrote in his exacting, 136-page opinion.

Gerard Bradley, a law professor at the University of Notre Dame, published a Fox News column in the hours before Walker filed his opinion faulting the media for not forcing Walker to address his sexual orientation.

And Byran Fischer, issues director for the American Family Association, urged the group's members to contact their congressional representatives about launching impeachment proceedings because Walker had not recused himself from a case in which "his own personal sexual proclivities utterly compromised his ability to make an impartial ruling."

William G. Ross, an expert on judicial ethics and law professor at Samford University in Alabama, said that a judge's sexual orientation has no more relevance to his or her ability to rule fairly on a case involving gay marriage than it would for a deeply religious judge or a judge who had been divorced multiple times.

"Under the logic of the people challenging the judge's fitness to rule on a case involving gay rights because he or she was gay, one would have to find a eunuch to serve on the case, because one could just as easily argue that a heterosexual judge couldn't rule on it either," Ross said.

Months before Walker struck down Proposition 8 as an unconstitutional violation of gay Americans' civil rights, members of the team defending the ban in court had complained about what they perceived as judicial bias.

Over their vigorous objections, Walker pushed to have the proceedings televised live, a plan the U.S. Supreme Court quashed at the last minute. Then, he refused to excuse as a witness a Proposition 8 supporter who had compared gays to child molesters during the 2008 campaign. Lawyers for the two same-sex couples who sued to invalidate the ban had called him as a witness to try to prove the measure was fueled by anti-gay prejudice.

Nevertheless, the defense does not plan to raise the specter of the judge's sexual orientation as they appeal his ruling to the 9th U.S. Circuit Court of Appeals, said Jim Campbell, a lawyer with the defense team.

"The bottom line is this case, from our perspective, is and always will be about the law and not about the judge who decides it," Campbell said. "It's just something that collectively as a legal team we have decided and going up, that's what this case is. The appellate courts are going to focus on the law."

Walker has ruled in at least two other cases involving gay rights issues during his two decades as a judge. In 1999, he rejected arguments from the parents of a San Leandro boy who claimed their religious rights were violated by pro-gay comments their son's teacher had made in the classroom.

In the other case, he dismissed a free speech claim by two Oakland city employees whose managers had confiscated a bulletin board flier for a religious group that promoted "natural family, marriage and family values." The city had "significant interests in restricting discriminatory speech about homosexuals," Walker wrote in his 2005 ruling.

Until this week, though, Walker had come under more criticism for representing the U.S. Olympic Committee in a lawsuit against a gay ex-Olympian who had created the so-called Gay Olympics. Walker won, forcing the Gay Olympics to become the Gay Games. He also aggressively pursued legal fees by attaching a $97,000 lien to the home of the organization's founder while he was dying of AIDS.

Gay activists cried foul, and his appointment to a federal judgeship was delayed for two years in the waning days of Ronald Reagan's presidency.

Civil rights groups also opposed Walker's nomination because of his 15-year membership in the Olympic Club, an all-male athletic club that had only recently admitted its first Black members. California's senior senator at the time, Democrat Alan Cranston, used the club issue to question Walker's fitness for the bench.

Observers usually describe him as a maverick who delights in keeping people guessing. They still are.

On the day of closing arguments in the gay marriage ban case, Walker said it was appropriate that the case was wrapping up in June.

"June, after all, is the month for ... " He let his deep voice trail off, and smiled at the predominantly gay courtroom.

Many froze, wondering if he would refer to the month in which San Francisco celebrates gay pride like Mardi Gras. Would that be a nod to rumors he was gay?

Walker waited a beat longer, savoring the pregnant pause.

"... weddings."