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Washington, D.C.—The leader of the National Treasury Employees Union (NTEU) has called on the head of the Social Security Administration (SSA) to direct the agency’s inspector general to withdraw proposed civil fines running into hundreds of thousands of dollars against certain SSA employees for work performed in their official duties according to agency rules and at the direction of an administrative law judge (ALJ).

In a detailed letter to SSA Commissioner Jo Anne B. Barnhart, NTEU President Colleen M. Kelley said the action by the agency’s IG is causing employees in the Office of Disability Adjudication and Review (ODAR) to operate “under a cloud of baseless IG investigations which undoubtedly affects the manner in which they perform their duties.” NTEU represents some 800 employees in that function, formerly known as the Office of Hearings and Appeals. It decides on requests for Social Security disability payments.

President Kelley’s letter points out forcefully that not only were the staff attorneys working under the guidance and specific direction of an SSA ALJ, and thus entitled to quasi-judicial immunity—which, as a legal matter, is an absolute bar to civil liability—they also enjoy qualified immunity as federal employees, shielding them from personal liability for acts taken in their official capacity.

Further, she noted that SSA itself has “endorsed and ratified the very conduct objected to by the IG,” namely use by the staff of general expert testimony in multiple cases dealing with the same issue. Not only did the attorneys receive training from SSA approving the practice, SSA has not disciplined the attorneys involved. The ALJ, who is the highest ranking management official in the office, had directed the language be included in the decisions.

NTEU is representing individual affected attorneys in the administrative appeals process and has filed a national grievance asking SSA to immediately dismiss the civil penalties and make the employees whole for any damages they have suffered as a result of the IG’s abuse of authority.

One employee faces a proposed fine of $3.5 million; three employees were advised that they face potential fines of more than $100,000 each.

SSA’s inspector general has invoked Section 1129 of the Social Security Act—a statute designed for other purposes—to assess the huge civil penalties on certain ODAR employees for their work on decisions issued by a now-deceased SSA ALJ in Iowa. Under the SSA system, the ALJ instructs the staff on the facts, evidence and legal conclusions to be included in a given decision. The IG contends that ODAR attorneys and staff improperly applied expert testimony developed in a case involving a specific claimant to resolve similar issues in cases involving other similarly situated claimants.

In the initial case, questions and answers were put to a vocational expert in legal documents known as ‘interrogatories.’ The interrogatories were broad and hypothetical designed to elicit further views of the expert on issues not specific to that claimant’s case. The subsequent use of the hypothetical responses is at issue here.

Responsibility for enforcing Section 1129 of the Social Security Act rests with the SSA Commissioner, but she has delegated this power to the IG. This section of the law provides for penalties against applicants for SSA benefits or their advocates to ensure the truthfulness of statements or representations made in the course of seeking benefits or payments under the Social Security Act.

Until the current IG action, President Kelley noted, NTEU has not found “a single SSA decision in which Section 1129 was applied to SSA employees acting in their official capacities.” Yet, the IG is proceeding against these employees even though it has not identified even one wrongly decided case among the 700 cases it is complaining about.

“Because you ultimately have the power to throw out these absurd penalties,” Kelley wrote the Commissioner, “I urge you to do it now, in order to spare the ODAR employees from incurring substantial legal expenses in an administrative process that can carry out for many months.”

NTEU is the largest independent federal union, representing some 150,000 employees in 30 agencies and departments.