Virginia Lawyers Weekly VA Lawyers Weekly
Where the Social Security Administration, or SSA, disqualified an attorney from representing disability claimants before the agency because he had been disbarred by two state bars, and the attorney challenged that decision on multiple grounds, each of his challenges was rejected.
Background
Woodson T. Drumheller filed the instant lawsuit challenging the decision of the SSA to disqualify him from representing disability claimants before SSA. The parties have filed cross motions for summary judgment.
ALJ
Plaintiff claims that SSA denied him constitutional due process by refusing his request to have the administrative law judge, or ALJ, recuse himself due to bias following remand from the appeals council. The only fact he cites is that the ALJ initially decided the charges against him without conducting a full hearing. But a previous adverse ruling against a party does not give rise to a basis to recuse.
Plaintiff does not point to any aspect of the ALJ’s initial decision that displays bias against plaintiff. Likewise, plaintiff does not point to any comments made by the ALJ during the hearing or in the subsequent decision that could display a “deep-seated favoritism or antagonism,” such that he could not render judgment fairly. Accordingly, plaintiff has not shown that a genuine dispute of material fact exists as to the impartiality of the ALJ.
Notice of intent
Plaintiff next argues that the SSA went beyond the charges in its notice of intent to disqualify. The court finds that the notice informed plaintiff of two charges against him: he had been disbarred for misconduct by the bars of Virginia and Georgia and that, if sustained, the charges would result in disqualification. After finding that he had been disbarred due to misconduct, the SSA disqualified him. Accordingly, no genuine dispute of material facts exists that SSA disqualified plaintiff for a reason that went beyond the charges in the notice of intent to disqualify.
Disqualification
Plaintiff alleges that SSA improperly found that disqualification represented the only sanction for a disbarred attorney. Plaintiff claims that this violated his rights to equal protection in that it treats disbarred attorneys differently from non-attorney claimant representatives.
The court finds that the statute gives discretion to SSA to disqualify representatives who have been disbarred (regardless of the reason for disbarment). SSA exercises that discretion in two ways. First, SSA regulations provide that it “may file charges” seeking sanctions when it has evidence that a representative fails to meet its qualifications or has violated its rules, such as having previously been disbarred.
If the ALJ sustains the charges, however, “[d]isqualification is the sole sanction available if the charges have been sustained because the representative has been disbarred or suspended from any court or bar to which the representative was previously admitted.” Said differently, if the SSA sustains the charges, it will disqualify representatives whose disbarments stem from misconduct, while it may not necessarily disqualify representatives whose disbarments stem from administrative violations.
Merits
In Counts One and Two, plaintiff alleges that SSA violated his Fifth Amendment right to due process of law. Plaintiff has presented no evidence that he received inadequate process. SSA afforded plaintiff a full hearing that allowed him to put on evidence and testimony. Then, the appeals council held a separate oral argument preceded by full briefing.
In Count Three, plaintiff alleges that SSA’s disqualification violates his right to equal protection under the Fourteenth Amendment. Plaintiff attempts to group himself with nonattorney representatives. However, his status as a disbarred attorney renders him dissimilar from non-attorney representatives. Additionally, plaintiff fails the second prong of the initial requirement for an equal protection challenge because he has not identified any discriminatory animus on the part of SSA.
In Count Four, plaintiff alleges that defendant violated his Fifth Amendment right to due process by going beyond the notice of the intent to sue. As discussed above, the evidence in this case forecloses plaintiff’s argument. In Count Five, plaintiff asks the court to “hold that disbarment of an attorney is not mandatory as the SSA has contended.” The court rejected this argument earlier.
Finally, plaintiff claims that the allegations that give rise to his constitutional claims also give rise to violations of the Administrative Procedures Act, or APA. The court finds that defendant did not abuse its discretion or act in an arbitrary or capricious manner, and substantial evidence supports its decision. Similarly, defendant did not act in excess of its statutory authority or contrary to any constitutional rights.
Plaintiff’s motion for summary judgment denied. Defendant’s motion for summary judgment granted.
Drumheller v. Kijakazi, Case No. 3:21-cv-565, Sept. 13, 2022. EDVA at Richmond (Novak). VLW 022-3-403. 23 pp.
