http://www.amazon.com/socialNsecurity-Confessions-Social-Security-Judge/dp/1449569757
Social Security Administration Commissioner Michael Astrue said judges (Administrative Law Judges, ALJs) in his agency who award disability benefits more than 85% of the time cost taxpayers roughly $1 billion a year. (See http://online.wsj.com/article_email/SB10001424052702303812104576440514261188124-lMyQjAxMTAxMDEwMjExNDIyWj.html )That is not true. If he is referring to Social Security Disability Insured (SSDI) Benefits, the claimants have paid into a fund that insures them against disability. Those benefits do not come from the General Fund. They are not taxpayers' money. Also, ALJs do not award $1 Billion a year in Supplemental Security Income (SSI) benefits. SSI is welfare and does come from taxpayer's funds.
Conversely, ALJs who do not pay legitimate benefits to claimants who qualify for benefits are not saving the taxpayers any money. Commissioner Astrue also said judges who deny benefits in 80% or more of their cases end up saving taxpayers $200 million each year. That is not true either.
Though he said that he wasn't suggesting that was a practice he condoned, he is trying to have his cake and eat it too.
Commissioner Astrue's testimony has not changed much, if at all, since he appeared before Congress in May 2007 and April 2008. (His statements and testimony are recorded in detail in my book, socialNsecurity, beginning at page 443. Available at www.judgelondonsteverson.com) He is still blaming the judges, asking for more money, more judges, and more time to reduce the backlog. Since 2007 the number of judges has gone from 1200 to 1500 and the backlog continues to grow. And Mr. Astrue continues to make excuses.
Mr. Astrue wants to have it both ways. "I find it interesting that there is so much wringing of the hands about a judge who pays almost 100% of his cases, as if the agency didn't know about it, as if the agency wasn't complicit in it, as if the agency didn't encourage it," said Marilyn Zahm, a Social Security judge in Buffalo who is an executive vice president of the Association of Administrative Law Judges (AALJ), the judges' union.
Judge Zahm had a lot more to say in an interview in October 2009. (Read the entire interview starting at page 430 in my book, socialNsecurity, available at Amazon.com or www.judgelondonsteverson.com)
It is a bit surprising that Judge Zahm would be so out-spoken, considering the minimum amount of work she does and the astranomical amount of money she is paid. According to Social Security records Judge Zahm issued only 26 decisions for the 9 months between September 2010 and June 2011. At a salary of $167,000.00 per year, she earned $6,423.00 per decision. An average hearing lasts about 30 minutes; so, her hourly wage for that period was about $12,846.00. That is a nice salary for so little work.
However, Judge Zahm is only the Vice President of the AALJ. Perhaps, the President, Judge Randy Frye, sets a better example. According to Social Security records Judge Frye issued only 37 decisions for the 9 months between September 2010 and June 2011. At a salary of $167,000.00 per year, he earned $4,513.50 per decision. An average hearing lasts about 30 minutes; so, his hourly wage for that period was about $9,027.00. That is also a nice salary for so little work.
Judges Zahm and Frye are not unique. During the same period Judge Mark Anderson issued only 3 decisions; Judge JoAnn Andersen issued only 5 decisions; Judge William King held only 4 hearings and issued 1 decision. He was busy traveling between California and Hawaii to conduct the hearings.
These statistics came from an SSA report which contains raw data from SSA's Case Processing and Management System without regard to the amount of time Administrative Law Judges devote to actual adjudication. In other words, factors which would affect the number of dispositions (e.g., management and administrative responsibilities, special assignments, part-time status, union representational duties, retirements, deaths or extended leave, etc.) have not been taken into account.
Here is what Commissioner Astrue is failing to say. The 1500 SSA ALJs earn approximately $167,000 a year each. The salaries of those ALJs is $2 billion 505 million a year. That figure does not include the about $3 billion a year which pays the salaries of the ALJs support staff and Commissioner Astrue's salary and that of his support staff. Also 20% of the ALJs do not hold any hearings.
Some ALJs decide 200 cases per month without holding hearings. They award benefits in 100% of their cases, trying to "pay down the backlog" like the judge in Huntington, W.Va., who awarded benefits in every case he saw in the first six months of fiscal 2011.
A GS-9 lawyer could perform the same function at a fraction of the cost. A GS-9 lawyer earns about $40,000 a year. The cost to the taxpayer of 1500 such lawyers would be only $60 million a year. That is much less than the $2 and a half billion in salaries to 1500 ALJs. That is where the cuts should begin, not with benefits to claimants.
Just 4 years ago in the middle of the economic downturn there were 1200 ALJs. Today there are upwards to 1500 according to Commissioner Astrue. The backlog of cases waiting to be heard has not decreased, despite pressure from Mr. Astrue to force the ALJs to "pay down the backlog". Yet, Mr. Astrue keeps hiring more judges at $167 thousand a year. It appears that Commissioner Astrue is trying to lower the unemployment rate by hiring more judges while President Obama is having difficulty creating jobs for mainstream America.
Commissioner Astrue can be vague in his testimony before Congress. We can be specific as to who the ALJs are and how many cases they decide each month and their reversal rates. See http://www.ssa.gov/appeals/DataSets/03_ALJ_Disposition_Data.html.
A court-by-court analysis of close to two million Social Security Administration (SSA) claims has documented extensive and hard-to-explain disparities in the way the administrative law judges (ALJs) within the agency's separate hearing offices decide whether individuals will be granted or denied disability benefits.
The organization analyzed about 2 million claims heard between fiscal 2006 and fiscal 2011, the report says.
"Even within the individual offices there is not a clear consensus among the judges about which claims should be awarded versus which should be denied," the report says.
(http://trac.syr.edu/tracreports/ssa/254/)
It is no secret that approval and denial rates vary from one administrative law judge to another in the Social Security Administration (SSA). Not too long ago there was commotion involving an administrative law judge who had a recent approval rate of nearly 100 percent. There are, however, situations in which an administrative law judge leans towards the other end of the spectrum with extremely high denial rates, as is the case with one administrative law judge hearing Social Security Disability cases in Richmond, Virginia.
Drew A. Swank, an administrative law judge who works for the SSA and hears claims in Richmond, Virginia, heard more than 1,100 disability cases last year alone. According to recent reports, the ALJ denied nearly 80 percent of the cases he heard. That does not, however, mean that he awarded benefits in 20 percent of the cases heard. In fact, in all 1,100+ cases that Drew A. Swank heard, only 6 percent of them received a fully favorable decision for the disability applicant.
According to individuals who have had to encounter hearings with Administrative Law Judge Swank, the ALJ is anything but fair. Some have reported that he refuses to allow vocational experts to testify in support of the disability applicants while others say he ignores the rules of the SSA hearing guidelines entirely.
Apparently Judge Swank is “distrustful” of disability applicants, hence his high denial rating, and seems to think he is above the laws of the SSA. The question is, why has there been no investigation into Swank’s approval ratios when the SSA is quick to investigate any ALJ who seems to have approval ratios that are too high?
The SSA must realize that judges who lean too far on either side of the disability hearing fence are a detriment to the SSA and must be dealt with equally. Just because denials do not result in the payment of unnecessary disability benefits does not make it okay to deny benefits to applicants who rightfully deserve them.
If the SSA is to treat all applicants fairly and ensure that all administrative law judges adhere to the SSA’s rules and guidelines, then the SSA should be just as quick to investigate why Judge Swank is denying so many disability claims as they would be if he were to be deciding an unusually high number of cases in favor of disability applicants.
It is situations such as these that lead many people to believe that the Social Security system is biased against applicants and that the agency makes it harder for applicants who rightfully deserve disability benefits to get the benefits they are entitled to. In order to send a different message, ALJs such as Judge Swank should be dealt with appropriately, just as the judges who award “too many” benefits are.
Wednesday, July 13, 2011
Wednesday, June 15, 2011
Social Security Judges Under Fire
http://www.amazon.com/socialNsecurity-Confessions-Social-Security-Judge/dp/1449569757
Social Security Judges are under fire from Congress which recently discovered how much they are paying out in benefits. In a recent series of articles in the Wall Street Journal and other media, judges are being focused on for approving every disability case that comes before them. (http://online.wsj.com/article/SB10001424052702303654804576347790598676096.html; http://online.wsj.com/article/SB10001424052748704681904576319163605918524.html; http://www.sltrib.com/sltrib/news/51934862-78/disability-security-social-judges.html.csp; http://www.alternet.org/newsandviews/article/592475/wall_street_journal_tries_to_smear_west_virginia_judge_over_social_security_rulings?page=entire; http://www.huntingtonnews.net/4769; ). Some in Congress are wondering why we need to pay a judge $167,000.00 a year to rubber-stamp every case that comes before him. A lawyer at the GS-9 level making $40,000.00 a year or less could do the same and save millions of dollars a year. The Law of Averages says that even a trained chimpanzee would be right about half the time, and he would work for peanuts.
Americans seeking Social Security disability benefits will often appeal to one of 1,500 administrative law judges (ALJ) who help administer the program. In the first half of 2011, 27 ALJs awarded social security benefits 95% of the time because of pressure from Commissioner M. Astrue. Nationwide over 100 ALJs are approving 9 out of every 10 cases that come before them. The cases they fail to approve are likely to be approved by the Appeals Council, which works for the Commissioner. Senate and House Committees are investigating the issue. Approving all cases without even reviewing the file is called “paying down the backlog”. Judges are under pressure to move cases quickly in order to clear a backlog of 730,000 pending cases. The pressure comes directly from the Commissioner of Social Security. This is one of the things that I discuss in detail in the book “socialNsecurity”, available at http://judgelondonsteverson.com; and I put it in proper perspective. Having spent about 20 years observing the competing forces that produce a judge who reverses 100% of his cases, while another reverses less than 10%, I have a better handle on this issue than a reporter who writes a sensational article. Much of my insight and explanation of the competing forces is spelled out in my book “socialNsecurity, Confessions of a Social Security Judge”. Anyone looking for more historical and recent statistics on this subject along with an explanation of how the system works can find easy readable information in my book.
Social Security Judges are under fire from Congress which recently discovered how much they are paying out in benefits. In a recent series of articles in the Wall Street Journal and other media, judges are being focused on for approving every disability case that comes before them. (http://online.wsj.com/article/SB10001424052702303654804576347790598676096.html; http://online.wsj.com/article/SB10001424052748704681904576319163605918524.html; http://www.sltrib.com/sltrib/news/51934862-78/disability-security-social-judges.html.csp; http://www.alternet.org/newsandviews/article/592475/wall_street_journal_tries_to_smear_west_virginia_judge_over_social_security_rulings?page=entire; http://www.huntingtonnews.net/4769; ). Some in Congress are wondering why we need to pay a judge $167,000.00 a year to rubber-stamp every case that comes before him. A lawyer at the GS-9 level making $40,000.00 a year or less could do the same and save millions of dollars a year. The Law of Averages says that even a trained chimpanzee would be right about half the time, and he would work for peanuts.
Americans seeking Social Security disability benefits will often appeal to one of 1,500 administrative law judges (ALJ) who help administer the program. In the first half of 2011, 27 ALJs awarded social security benefits 95% of the time because of pressure from Commissioner M. Astrue. Nationwide over 100 ALJs are approving 9 out of every 10 cases that come before them. The cases they fail to approve are likely to be approved by the Appeals Council, which works for the Commissioner. Senate and House Committees are investigating the issue. Approving all cases without even reviewing the file is called “paying down the backlog”. Judges are under pressure to move cases quickly in order to clear a backlog of 730,000 pending cases. The pressure comes directly from the Commissioner of Social Security. This is one of the things that I discuss in detail in the book “socialNsecurity”, available at http://judgelondonsteverson.com; and I put it in proper perspective. Having spent about 20 years observing the competing forces that produce a judge who reverses 100% of his cases, while another reverses less than 10%, I have a better handle on this issue than a reporter who writes a sensational article. Much of my insight and explanation of the competing forces is spelled out in my book “socialNsecurity, Confessions of a Social Security Judge”. Anyone looking for more historical and recent statistics on this subject along with an explanation of how the system works can find easy readable information in my book.
Sunday, April 17, 2011
An American Tragedy, The Webster Smith Case Is An American Tragedy.
Why Was Webster Smith court-martialed?
The Webster Smith Story is an American tragedy. It is not just the story of a Black Coast Guard Academy cadet; it is the story of an American family. It is the story of his mother, Belinda; and his father, Cleon; his wife, Lindsey and their daughter; and of his sister and brothers. It is the story of the friends of Webster Smith. They have all been harmed by the violence directed at their son, brother, husband, father and friend.
At the Coast Guard Academy, Webster Smith was a member of the Eclipse, Track Team, Football team, Regimental Staff, and a Swab summer Staff. He represented the Coast Guard in Washington DC concerning fitness and nutrition programs. He received numerous silver stars and never received a demerit prior the incident and investigation in 2005 that led to his court-martial.
To his classmates, teachers, and coaches Webster Smith appeared to be a magnetic, charming and gifted man, who had risen above his circumstances. Yet, in a moment, as if in the twinkling of an eye, a swift series of events diminished his popularity, vilified his name, and assailed his honor. His image was converted by senior Coast Guard officers from a popular athlete and nice guy to that of a sexual predator and public enemy number one at the Coast Guard Academy.
Webster Smith had dared to dream some big dreams. Like Alex Haley he had dared to believe that he could rise in the USCG to the highest level to which his talents and initiative could take him.
His parents were middle class African Americans. His father, Cleon Smith, was a graduate of the Coast Guard Academy in the Class of 1978 along with Vice Admiral Manson K. Brown.
His mother, Belinda Ingram Smith, believed in God and a good education. After attending college at WSSU for four years she went on to become the first Black female Crime Scene Investigator in the history of the Winston-Salem police Department.
This unbelievable turn about in what had been a Black success story is a singularly American tragedy.
That a cadet so deeply respected and loved by his coaches and classmates could evoke such an outpouring of hate and anger from the senior officers at the Coast Guard Academy is a Coast Guard tragedy and an American tragedy.
All of the female cadets involved with and associated with Webster Smith escaped clean without any consequences for their actions or their behavior. Mother Nature was the only one who exacted a penalty. Natural Law resulted in a pregnancy for his girlfriend. An abortion followed.
If women are equal, they should be treated as equal. Not a single woman was disciplined under the UCMJ or the cadet regulations. All of the female cadets involved in the Webster Smith case graduated and were commissioned as Coast Guard officers. Their testimony at the court-martial painted a picture of female cadets who were untrustworthy, arrogant, and certainly not ladies. Their conduct was unbecoming an officer and a lady. (Read more at http://judgelondonsteverson.com)
These women were witnesses at a public trial yet they were accorded the equivalent of rape shield protection. This was not a rape case. Not one of the women had been raped. There was testimony of consensual sex acts. Some of the consensual sex acts were unlawful because, among other things, they occurred in Chase Hall, or at Academy functions. How could unlawful consensual sex acts result in charges against only one of the participants? It takes two to tango.
Is it wrong for Black people to ask if there is a double standard? Would that amount to paranoia on the part of Black people? Or would that be considered playing the race card simply to inquire? Is it absurd to believe that anything more than pure chance resulted in the court-martial of Webster Smith? The fact that he was court-martialed speaks to a social reality that African-Americans are acutely aware of in America. Race is not a card to be dealt, but it determines whom the dealer is and who gets dealt a losing hand.
According to a 2008 General Accounting Office Report, from 2003 to 2006 there were NO sexual-harassment complaints at the Coast Guard Academy, but there were 12 incidents of sexual assault reported to the Coast Guard Investigative Service (CGIS), with one incident in 2003, one in 2004, “NONE” in 2005 and 10 in 2006. It is hard to conceive of the facts relied upon by, Captain Douglas Wisniewski, the Commandant Of Cadets when he asserted in 2005 that there was a climate of fear of sexual assault in Chase Hall.
The 10 incidents reported in 2006 would appear to have occurred after the Webster Smith court-martial. Webster Smith was removed from Chase Hall in 2005. Who was doing all of the sexual assaulting in 2006? Why were none of these people brought to justice? They could have been tried along with Webster Smith.
The U.S. Supreme Court refused to hear the appeal of Webster Smith. The justices declined to hear the case without comment. The decision of the Court of Appeals for the Armed Forces (CAAF) became the final decision in the case.
Thirteen female cadets and 11 males at the U.S. Coast Guard Academy (CGA) reported anonymously in an April 2008 survey that they experienced “unwanted sexual contact,” ranging from touching to forced sexual acts, during the 2007-08 school year.
More than three-quarters said that alcohol or drugs were involved and that the offender was a fellow cadet.
None of the women sought professional help and only 7 percent discussed the incident with authorities.
When Alexander Hamilton organized the Revenue Cutter Service in 1790 it was established in the Department of the Treasury. Later it became known as the Coast Guard. In 1966 it was placed in the Department of Transportation. Today it is the nucleus of the Department of Homeland Security. Webster Smith's case is currently being reviewed for clemency by the Secretary of the Department of Home Land Security, Janet Napolitano.
Webster Smith would have made an excellent military officer. It is Webster Smith and people like him that I want on the wall as our last line of defense for our American way of life protecting us from the great unwashed horde that is coming. Secretary Napolitano who do you want on that wall?
(Read more at http://judgelondonsteverson.com)
CONDUCT UNBECOMING an Officer and a Lady: A Case That Will Live In Infamy. The Conviction of Webster Smith. by Judge London Steverson
My rating: 4 of 5 stars
The Webster Smith Story is an American tragedy. It is not just the story of a Black Coast Guard Academy cadet; it is the story of an American family. To his classmates, teachers, and coaches at the Coast Guard Academy Webster Smith appeared to be a magnetic, charming and gifted man, who had risen above his circumstances. Yet, in a moment, as if in the twinkling of an eye, a swift series of events diminished his popularity, vilified his name, and assailed his honor. His image was converted by senior Coast Guard officers from a popular athlete and nice guy to that of a sexual predator and public enemy number one at the Coast Guard Academy.The Webster Smith case was a litmus test for justice in America. Every once in a while a case comes along that puts our humanity as a people on trial. Everything that we profess to stand for as Americans was on trial. I am ashamed of our justice system. This was a tragedy and a travesty.
I wanted to know why Webster Smith was court-martialed? Now I know. This book is the full story.
View all my reviews
The Webster Smith Story is an American tragedy. It is not just the story of a Black Coast Guard Academy cadet; it is the story of an American family. It is the story of his mother, Belinda; and his father, Cleon; his wife, Lindsey and their daughter; and of his sister and brothers. It is the story of the friends of Webster Smith. They have all been harmed by the violence directed at their son, brother, husband, father and friend.
At the Coast Guard Academy, Webster Smith was a member of the Eclipse, Track Team, Football team, Regimental Staff, and a Swab summer Staff. He represented the Coast Guard in Washington DC concerning fitness and nutrition programs. He received numerous silver stars and never received a demerit prior the incident and investigation in 2005 that led to his court-martial.
To his classmates, teachers, and coaches Webster Smith appeared to be a magnetic, charming and gifted man, who had risen above his circumstances. Yet, in a moment, as if in the twinkling of an eye, a swift series of events diminished his popularity, vilified his name, and assailed his honor. His image was converted by senior Coast Guard officers from a popular athlete and nice guy to that of a sexual predator and public enemy number one at the Coast Guard Academy.
Webster Smith had dared to dream some big dreams. Like Alex Haley he had dared to believe that he could rise in the USCG to the highest level to which his talents and initiative could take him.
His parents were middle class African Americans. His father, Cleon Smith, was a graduate of the Coast Guard Academy in the Class of 1978 along with Vice Admiral Manson K. Brown.
His mother, Belinda Ingram Smith, believed in God and a good education. After attending college at WSSU for four years she went on to become the first Black female Crime Scene Investigator in the history of the Winston-Salem police Department.
This unbelievable turn about in what had been a Black success story is a singularly American tragedy.
That a cadet so deeply respected and loved by his coaches and classmates could evoke such an outpouring of hate and anger from the senior officers at the Coast Guard Academy is a Coast Guard tragedy and an American tragedy.
All of the female cadets involved with and associated with Webster Smith escaped clean without any consequences for their actions or their behavior. Mother Nature was the only one who exacted a penalty. Natural Law resulted in a pregnancy for his girlfriend. An abortion followed.
If women are equal, they should be treated as equal. Not a single woman was disciplined under the UCMJ or the cadet regulations. All of the female cadets involved in the Webster Smith case graduated and were commissioned as Coast Guard officers. Their testimony at the court-martial painted a picture of female cadets who were untrustworthy, arrogant, and certainly not ladies. Their conduct was unbecoming an officer and a lady. (Read more at http://judgelondonsteverson.com)
These women were witnesses at a public trial yet they were accorded the equivalent of rape shield protection. This was not a rape case. Not one of the women had been raped. There was testimony of consensual sex acts. Some of the consensual sex acts were unlawful because, among other things, they occurred in Chase Hall, or at Academy functions. How could unlawful consensual sex acts result in charges against only one of the participants? It takes two to tango.
Is it wrong for Black people to ask if there is a double standard? Would that amount to paranoia on the part of Black people? Or would that be considered playing the race card simply to inquire? Is it absurd to believe that anything more than pure chance resulted in the court-martial of Webster Smith? The fact that he was court-martialed speaks to a social reality that African-Americans are acutely aware of in America. Race is not a card to be dealt, but it determines whom the dealer is and who gets dealt a losing hand.
According to a 2008 General Accounting Office Report, from 2003 to 2006 there were NO sexual-harassment complaints at the Coast Guard Academy, but there were 12 incidents of sexual assault reported to the Coast Guard Investigative Service (CGIS), with one incident in 2003, one in 2004, “NONE” in 2005 and 10 in 2006. It is hard to conceive of the facts relied upon by, Captain Douglas Wisniewski, the Commandant Of Cadets when he asserted in 2005 that there was a climate of fear of sexual assault in Chase Hall.
The 10 incidents reported in 2006 would appear to have occurred after the Webster Smith court-martial. Webster Smith was removed from Chase Hall in 2005. Who was doing all of the sexual assaulting in 2006? Why were none of these people brought to justice? They could have been tried along with Webster Smith.
The U.S. Supreme Court refused to hear the appeal of Webster Smith. The justices declined to hear the case without comment. The decision of the Court of Appeals for the Armed Forces (CAAF) became the final decision in the case.
Thirteen female cadets and 11 males at the U.S. Coast Guard Academy (CGA) reported anonymously in an April 2008 survey that they experienced “unwanted sexual contact,” ranging from touching to forced sexual acts, during the 2007-08 school year.
More than three-quarters said that alcohol or drugs were involved and that the offender was a fellow cadet.
None of the women sought professional help and only 7 percent discussed the incident with authorities.
When Alexander Hamilton organized the Revenue Cutter Service in 1790 it was established in the Department of the Treasury. Later it became known as the Coast Guard. In 1966 it was placed in the Department of Transportation. Today it is the nucleus of the Department of Homeland Security. Webster Smith's case is currently being reviewed for clemency by the Secretary of the Department of Home Land Security, Janet Napolitano.
Webster Smith would have made an excellent military officer. It is Webster Smith and people like him that I want on the wall as our last line of defense for our American way of life protecting us from the great unwashed horde that is coming. Secretary Napolitano who do you want on that wall?
(Read more at http://judgelondonsteverson.com)
CONDUCT UNBECOMING an Officer and a Lady: A Case That Will Live In Infamy. The Conviction of Webster Smith. by Judge London SteversonMy rating: 4 of 5 stars
The Webster Smith Story is an American tragedy. It is not just the story of a Black Coast Guard Academy cadet; it is the story of an American family. To his classmates, teachers, and coaches at the Coast Guard Academy Webster Smith appeared to be a magnetic, charming and gifted man, who had risen above his circumstances. Yet, in a moment, as if in the twinkling of an eye, a swift series of events diminished his popularity, vilified his name, and assailed his honor. His image was converted by senior Coast Guard officers from a popular athlete and nice guy to that of a sexual predator and public enemy number one at the Coast Guard Academy.The Webster Smith case was a litmus test for justice in America. Every once in a while a case comes along that puts our humanity as a people on trial. Everything that we profess to stand for as Americans was on trial. I am ashamed of our justice system. This was a tragedy and a travesty.
I wanted to know why Webster Smith was court-martialed? Now I know. This book is the full story.
View all my reviews
Thursday, January 20, 2011
Social Security Changes In 2011.
The Social Security program will be tweaked in several important ways in 2011. Workers will get a temporary tax break on the amount they pay into the entitlement program, and several claiming options for retirees will be eliminated. Here's a look at how the Social Security program will change this year.
Lower Social Security taxes. The amount workers pay into the Social Security trust fund will temporarily drop from 6.2 percent of taxable wages up to $106,800 annually to 4.2 percent in 2011 only. For self-employed workers, the Social Security tax rate will drop from 12.4 percent to 10.4 percent next year, due to provisions of the Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010, signed by President Obama on December 17. Employers will continue to pay 6.2 percent of wages into the entitlement program.
The Social Security system's finances are not expected to be harmed because the trust fund will be reimbursed for the full amount of the tax break from the general fund of the Treasury. However, this change also means that the Social Security trust fund will no longer be completely funded directly by citizen contributions. "This pretty much ends the claim that Social Security is self-financing or that it doesn't contribute to the budget deficit," says Andrew Biggs, a resident scholar at the American Enterprise Institute and a former deputy commissioner of the Social Security Administration.
Free loan option eliminated. Retirees will no longer be able to get an interest-free loan from the Social Security trust fund this year. The Social Security Administration announced in December 2010 that individuals will not be able to begin payments at age 62, pay back all the benefits received at age 70 without interest, and then reclaim at a higher rate due to delayed claiming. Under the new rules, Social Security beneficiaries may withdraw an application for retirement benefits only within 12 months of their first Social Security payment and are limited to one withdrawal per lifetime. "This free loan costs the Social Security trust fund the use of money during the period the beneficiary is receiving benefits with the intent of later withdrawing the application and the interest earned on these funds," says the Social Security Administration in a statement about the rule change. The Center for Retirement Research at Boston College calculated that mass utilization of this claiming strategy could cost the system between $5.5 billion and $11 billion, primarily going to high-income households with enough liquid assets to pay back the benefits.
Retroactive benefit suspensions discontinued. Retirees will still be allowed to temporarily suspend their benefits and restart them later, which can result in bigger Social Security checks to account for the months or years in which payment was not received. However, beneficiaries will not be able to retroactively suspend benefits and pay back money already received in exchange for higher payments going forward. Retirees will be allowed to voluntarily suspend benefits only for months in which they did not receive payments or future benefits beginning the month after the request is made.
Paper checks retired. Retirees who apply for Social Security benefits on or after May 1, 2011, will no longer have the option of receiving a paper check in the mail. Seniors can have their entitlement payments directly deposited into a bank or credit union account or loaded onto a prepaid Direct Express Debit MasterCard. "This important change will provide significant savings to American taxpayers who will no longer incur the annual $120 million price tag associated with paper checks and will save Social Security $1 billion over the next 10 years," says Richard Gregg, Treasury Fiscal Assistant Secretary. Retirees already receiving paper checks will need to switch to direct deposit or the prepaid debit card by March 1, 2013.
Lower Social Security taxes. The amount workers pay into the Social Security trust fund will temporarily drop from 6.2 percent of taxable wages up to $106,800 annually to 4.2 percent in 2011 only. For self-employed workers, the Social Security tax rate will drop from 12.4 percent to 10.4 percent next year, due to provisions of the Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010, signed by President Obama on December 17. Employers will continue to pay 6.2 percent of wages into the entitlement program.
The Social Security system's finances are not expected to be harmed because the trust fund will be reimbursed for the full amount of the tax break from the general fund of the Treasury. However, this change also means that the Social Security trust fund will no longer be completely funded directly by citizen contributions. "This pretty much ends the claim that Social Security is self-financing or that it doesn't contribute to the budget deficit," says Andrew Biggs, a resident scholar at the American Enterprise Institute and a former deputy commissioner of the Social Security Administration.
Free loan option eliminated. Retirees will no longer be able to get an interest-free loan from the Social Security trust fund this year. The Social Security Administration announced in December 2010 that individuals will not be able to begin payments at age 62, pay back all the benefits received at age 70 without interest, and then reclaim at a higher rate due to delayed claiming. Under the new rules, Social Security beneficiaries may withdraw an application for retirement benefits only within 12 months of their first Social Security payment and are limited to one withdrawal per lifetime. "This free loan costs the Social Security trust fund the use of money during the period the beneficiary is receiving benefits with the intent of later withdrawing the application and the interest earned on these funds," says the Social Security Administration in a statement about the rule change. The Center for Retirement Research at Boston College calculated that mass utilization of this claiming strategy could cost the system between $5.5 billion and $11 billion, primarily going to high-income households with enough liquid assets to pay back the benefits.
Retroactive benefit suspensions discontinued. Retirees will still be allowed to temporarily suspend their benefits and restart them later, which can result in bigger Social Security checks to account for the months or years in which payment was not received. However, beneficiaries will not be able to retroactively suspend benefits and pay back money already received in exchange for higher payments going forward. Retirees will be allowed to voluntarily suspend benefits only for months in which they did not receive payments or future benefits beginning the month after the request is made.
Paper checks retired. Retirees who apply for Social Security benefits on or after May 1, 2011, will no longer have the option of receiving a paper check in the mail. Seniors can have their entitlement payments directly deposited into a bank or credit union account or loaded onto a prepaid Direct Express Debit MasterCard. "This important change will provide significant savings to American taxpayers who will no longer incur the annual $120 million price tag associated with paper checks and will save Social Security $1 billion over the next 10 years," says Richard Gregg, Treasury Fiscal Assistant Secretary. Retirees already receiving paper checks will need to switch to direct deposit or the prepaid debit card by March 1, 2013.
Sunday, January 9, 2011
Judge John Roll Shot And Killed At Safeway In Tuscon, Arizona.
Chief Judge John M. Roll of the U.S. District Court of Arizona was shot and killed on January 8, 2011 in front of a Tucson, Arizona Safeway grocery store. He was 63.
The judge lived just a few blocks away from the supermarket. He had gone to mass and decided to stop at the store on his way home, according to Pima County Sheriff Clarence Dupnik.
The shooter has been identified as Jared Loughner, 22. He is in custody.
The gun used in the shooting was purchased legally at a Sportman's Warehouse.
FBI Director Robert Mueller is in Arizona to help coordinate the investigation, U.S. Attorney General Eric Holder announced. “We will hold accountable anyone responsible for these heinous acts,” he said.
President Obama praised the judge for having "served America’s legal system for almost 40 years." Authorities do not yet know "what provoked this unspeakable act," the President said in remarks this afternoon.
U.S. Chief Justice John Roberts said in a written statement that "Judge Roll’s death is a somber reminder of the importance of the rule of law and the sacrifices of those who work to secure it."
Arizona Chief Justice Rebecca White Berch remembered Judge Roll as "a kind man, a wise and fair jurist, and a friend to many within the legal community".
ABA President Stephen N. Zack called the shootings "a direct attack on our American way of life and the rule of law" and said Judge Roll was "a respected and admired jurist."
"This shocking and frightening event emphasizes the importance of protecting and respecting our civic life, and all those who participate in it," Zack said.
Judge Roll was nominated to the bench in 1991 by President George H.W. Bush. He had served as chief judge since 2006.
Judge Roll received his J.D. from University of Arizona College of Law in 1972 and a LL.M. from University of Virginia School of Law in 1990. He had served as a prosecutor for Tucson, Pima County and the U.S. Department of Justice in Arizona. He was a judge on Arizona’s Court of Appeals from 1987 to 1991, including serving as its presiding judge from 1988 to 1991.
Roll himself had been the subject of death threats in 2009, when he presided over a $32 million civil-rights lawsuit filed by illegal immigrants against an Arizona rancher.
When Roll ruled the case could go forward, he received more than 200 calls from members of the public in a single afternoon, U.S. Marshal for Arizona David Gonzales said.
Roll and his wife were given protection for about a month. "It was unnerving and invasive...By its nature it has to be," Roll said at the time.
Law enforcement officials identified four individuals responsible for the threats, but recommended the judge not seek prosecution. The judge took the Marshals advice.
"I have a very strong belief that there is nothing wrong with criticizing a judicial decision," Roll said. "But when it comes to threats, that is an entirely different matter."
According to federal courts spokesman David Sellers, the last federal judge to have been assassinated while in office was U.S. District Judge Robert Smith Vance, who was killed on December 16, 1989 by a mail bomb at his home in Alabama. Last year, Judge Roll’s colleague Judge Susan Bolton was threatened both before and after she issued a ruling on Arizona's controversial new immigration measure. The threats prompted U.S. Marshals to increase security at federal courthouses in the state, reports Politics Daily columnist Andrew Cohen.
Previous coverage:
ABAJournal.com reported in May 2009 that "Security Worries Spur Some Judges to Pack Heat, Use 24-Hour Guards"
John M. Roll, the chief federal judge in Arizona, was fatally wounded in the attack that killed five others and wounded at least 18 people.
“We’re all in kind of a state of shock here,” said Richard H. Weare, the clerk of the Federal District Court for Arizona, after hearing from the Federal Marshals Service, which confirmed the death.
President Obama praised Judge Roll as a jurist “who has served America’s legal system for almost 40 years.”
Judge Roll was appointed by the first President George 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.
The chief judge of the United States Court of Appeals for the Ninth Circuit, Alex Kozinski, described Judge Roll as a tireless advocate for his district: “Of all the chief judges of the circuit, I must say he was always the hardest working — always looking out for his district. He’ll be a great loss to his family, but he’ll also be a great loss to the federal judiciary.”
He said Judge Roll was a good friend who sought increased federal resources for his district, which had seen a surge in felony cases related to drugs and crime along the border with Mexico.
Judge Roll was no stranger to the risks of public service. He and his wife were provided protection by the Federal Marshals Service in 2009 in connection with a case in which a group of Mexicans sued an Arizona rancher for $32 million. They accused the rancher of civil right abuses for stopping people at gunpoint as they crossed his land and then turning them over to the Border Patrol.
After Judge Roll ruled that the case could go forward, he received death threats. Judge Roll told The Arizona Republic that the situation was “unnerving and invasive.”
When several of those making the threats were identified, he declined to press charges at the recommendation of the Marshals Service.
“I have a very strong belief that there is nothing wrong with criticizing a judicial decision,” he said. “But when it comes to threats, that is an entirely different matter.”
John McCarthy Roll was born in Pittsburgh and graduated from the University of Arizona in 1969 and the university’s law school in 1972. He is survived by his wife, Maureen, three sons and five grandchildren.
Killings of federal judges are rare. The last to be murdered in office was Judge Robert Vance, who was killed by a mail bomb at his home in Mountain Brook, Ala., in 1989.
On Dec. 21, Judge Roll sent an e-mail to Judge Kozinski with an attached letter from Ms. Giffords and another member of Congress from Arizona, Ed Pastor, a Democrat. The two members of Congress encouraged the Ninth Circuit to “declare a judicial emergency” to help cope with the increased workload by extending deadlines under the speedy trial act. In the e-mail, Judge Roll wrote that the Congressional letter was “unsolicited but very much appreciated.”
Judge Kozinski speculated — “just a guess,” he said — that Judge Roll might have gone to the event on Saturday to thank Ms. Giffords for the letter. “And he gets killed for it.”
Judge Kozinski added, “If it can happen to him, it can happen to any of us.”
In a statement, John G. Roberts Jr., the chief justice of the United States, said: ”We in the judiciary have suffered the terrible loss of one of our own. Judge John Roll was a wise jurist who selflessly served Arizona and the nation with great distinction.”
Former Justice Sandra Day O’Connor, who lives in Arizona, said she was devastated by the news. “It is a horrible event, and heartbreaking,” she said. “The judge was just wonderful.”
“It sounds like something that might happen in some place like Afghanistan,” she said. “It shouldn’t happen in Tucson, Ariz., or anyplace else in the United States.”
The judge lived just a few blocks away from the supermarket. He had gone to mass and decided to stop at the store on his way home, according to Pima County Sheriff Clarence Dupnik.
The shooter has been identified as Jared Loughner, 22. He is in custody.
The gun used in the shooting was purchased legally at a Sportman's Warehouse.
FBI Director Robert Mueller is in Arizona to help coordinate the investigation, U.S. Attorney General Eric Holder announced. “We will hold accountable anyone responsible for these heinous acts,” he said.
President Obama praised the judge for having "served America’s legal system for almost 40 years." Authorities do not yet know "what provoked this unspeakable act," the President said in remarks this afternoon.
U.S. Chief Justice John Roberts said in a written statement that "Judge Roll’s death is a somber reminder of the importance of the rule of law and the sacrifices of those who work to secure it."
Arizona Chief Justice Rebecca White Berch remembered Judge Roll as "a kind man, a wise and fair jurist, and a friend to many within the legal community".
ABA President Stephen N. Zack called the shootings "a direct attack on our American way of life and the rule of law" and said Judge Roll was "a respected and admired jurist."
"This shocking and frightening event emphasizes the importance of protecting and respecting our civic life, and all those who participate in it," Zack said.
Judge Roll was nominated to the bench in 1991 by President George H.W. Bush. He had served as chief judge since 2006.
Judge Roll received his J.D. from University of Arizona College of Law in 1972 and a LL.M. from University of Virginia School of Law in 1990. He had served as a prosecutor for Tucson, Pima County and the U.S. Department of Justice in Arizona. He was a judge on Arizona’s Court of Appeals from 1987 to 1991, including serving as its presiding judge from 1988 to 1991.
Roll himself had been the subject of death threats in 2009, when he presided over a $32 million civil-rights lawsuit filed by illegal immigrants against an Arizona rancher.
When Roll ruled the case could go forward, he received more than 200 calls from members of the public in a single afternoon, U.S. Marshal for Arizona David Gonzales said.
Roll and his wife were given protection for about a month. "It was unnerving and invasive...By its nature it has to be," Roll said at the time.
Law enforcement officials identified four individuals responsible for the threats, but recommended the judge not seek prosecution. The judge took the Marshals advice.
"I have a very strong belief that there is nothing wrong with criticizing a judicial decision," Roll said. "But when it comes to threats, that is an entirely different matter."
According to federal courts spokesman David Sellers, the last federal judge to have been assassinated while in office was U.S. District Judge Robert Smith Vance, who was killed on December 16, 1989 by a mail bomb at his home in Alabama. Last year, Judge Roll’s colleague Judge Susan Bolton was threatened both before and after she issued a ruling on Arizona's controversial new immigration measure. The threats prompted U.S. Marshals to increase security at federal courthouses in the state, reports Politics Daily columnist Andrew Cohen.
Previous coverage:
ABAJournal.com reported in May 2009 that "Security Worries Spur Some Judges to Pack Heat, Use 24-Hour Guards"
John M. Roll, the chief federal judge in Arizona, was fatally wounded in the attack that killed five others and wounded at least 18 people.
“We’re all in kind of a state of shock here,” said Richard H. Weare, the clerk of the Federal District Court for Arizona, after hearing from the Federal Marshals Service, which confirmed the death.
President Obama praised Judge Roll as a jurist “who has served America’s legal system for almost 40 years.”
Judge Roll was appointed by the first President George 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.
The chief judge of the United States Court of Appeals for the Ninth Circuit, Alex Kozinski, described Judge Roll as a tireless advocate for his district: “Of all the chief judges of the circuit, I must say he was always the hardest working — always looking out for his district. He’ll be a great loss to his family, but he’ll also be a great loss to the federal judiciary.”
He said Judge Roll was a good friend who sought increased federal resources for his district, which had seen a surge in felony cases related to drugs and crime along the border with Mexico.
Judge Roll was no stranger to the risks of public service. He and his wife were provided protection by the Federal Marshals Service in 2009 in connection with a case in which a group of Mexicans sued an Arizona rancher for $32 million. They accused the rancher of civil right abuses for stopping people at gunpoint as they crossed his land and then turning them over to the Border Patrol.
After Judge Roll ruled that the case could go forward, he received death threats. Judge Roll told The Arizona Republic that the situation was “unnerving and invasive.”
When several of those making the threats were identified, he declined to press charges at the recommendation of the Marshals Service.
“I have a very strong belief that there is nothing wrong with criticizing a judicial decision,” he said. “But when it comes to threats, that is an entirely different matter.”
John McCarthy Roll was born in Pittsburgh and graduated from the University of Arizona in 1969 and the university’s law school in 1972. He is survived by his wife, Maureen, three sons and five grandchildren.
Killings of federal judges are rare. The last to be murdered in office was Judge Robert Vance, who was killed by a mail bomb at his home in Mountain Brook, Ala., in 1989.
On Dec. 21, Judge Roll sent an e-mail to Judge Kozinski with an attached letter from Ms. Giffords and another member of Congress from Arizona, Ed Pastor, a Democrat. The two members of Congress encouraged the Ninth Circuit to “declare a judicial emergency” to help cope with the increased workload by extending deadlines under the speedy trial act. In the e-mail, Judge Roll wrote that the Congressional letter was “unsolicited but very much appreciated.”
Judge Kozinski speculated — “just a guess,” he said — that Judge Roll might have gone to the event on Saturday to thank Ms. Giffords for the letter. “And he gets killed for it.”
Judge Kozinski added, “If it can happen to him, it can happen to any of us.”
In a statement, John G. Roberts Jr., the chief justice of the United States, said: ”We in the judiciary have suffered the terrible loss of one of our own. Judge John Roll was a wise jurist who selflessly served Arizona and the nation with great distinction.”
Former Justice Sandra Day O’Connor, who lives in Arizona, said she was devastated by the news. “It is a horrible event, and heartbreaking,” she said. “The judge was just wonderful.”
“It sounds like something that might happen in some place like Afghanistan,” she said. “It shouldn’t happen in Tucson, Ariz., or anyplace else in the United States.”
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.
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.
IN THE SUPREME COURT OF THE UNITED STATES OF AMERICA
No. 10-18
Title: Webster M. Smith, Petitioner
v.
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
SupremeCtBriefs@USDOJ
Party name: United States
Other:
Jonathan L. Marcus Covington & Burling, LLP (202) 662-6000
1201 Pennsylvania Avenue, NW
Washington, DC 20004
jmarcus@cov.com
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
jonathan.potter@conus.army.mil
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.
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