There Is Now An “Acting” Commissioner

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On March 18, 2018, I blogged asking: Is There A Commissioner of Social Security?  In that blog, I noted that President Trump’s January 23, 2017 appointment of Nancy A. Berryhill to serve as the Acting Commissioner of Social Security expired under the Vacancies Reform Act (5 U.S.C.A. 3345 et seq.) as of November 17, 2017.  Because of the expiration of her appointment, Ms. Berryhill’s title changed from: “Nancy A. Berryhill, Acting Commissioner of Social Security” to: “Nancy A. Berryhill, Deputy Commissioner for Operations, performing the duties and functions not reserved to the Commissioner of Social Security.”

On April 17, 2018, President Trump nominated Andrew M. Saul to become the next Commissioner of Social Security.  (Mr. Saul’s nomination was received by the U. S. Senate and referred to the Committee on Finance. )  The effect of this nomination is to revive the status of Nancy A. Berryhill to “Acting Commissioner” of Social Security.  As explained by Judge Ambrose in the case of Guy C. Patterson v. Nancy A. Berryhill, Commissioner (Acting), U. S. Social Security Administration, Dist. Court, WD Pennsylvania, No. 2:18-cv-00193, decided June 14, 2018, the Vacancies Reform Act has a “spring-back” clause which allows Ms. Berryhill to become the “Acting Commissioner” once a nomination for a Commissioner of Social Security has been made by the President and received by the U.S. Senate.  Ms. Berryhill will continue to serve as the Acting Commissioner as long as Mr. Saul’s nomination is pending in the U.S. Senate.  The reason Ms. Berryhill is the “Acting Commissioner” is due to the plan/order of succession of the Social Security Administration.  The succession order provides that when a vacancy exists at the Commissioner level, the person who is next in line is the Deputy Commissioner of Operations.  Ms. Berryhill is the Deputy Commissioner of Operations.

From a litigation perspective,  Rule 25(d) of the Federal Rules of Civil Procedure provides that when a party who is a party to a law suit because of her official capacity, ceases to serve in that position, the official’s successor is automatically substituted as a party.  Proceedings in the pending litigation following the automatic substitution should be in the name of substituted party.  Rule 25(d) also allows for the court, before which the case is pending, to enter an order of substitution “at any time.”  That said, even without an order of substitution, the substitution is not affected.

The first pleading after the effective date of substitution should contain the name of the substituted party with a footnote added after the substituted party’s name.  The footnote could read:

“Nancy  A.  Berryhill  became  the  Acting  Commissioner  of  Social  Security  on  April 17, 2018.  Pursuant  to  Rule25(d)(1)  of  the  Federal  Rules  of  Civil  Procedure,  Nancy  A.  Berryhill  should  be  substituted,  therefore,  for  Nancy A. Berryhill, Deputy Commissioner for Operations, performing the duties and functions not reserved to the Commissioner of Social Security as Defendant in this suit. No further action need be taken to continue this suit by reason of the last sentence of section205(g) of the Social Security Act, 42 U.S.C. § 405(g).

If Mr. Saul is confirmed by the U. S. Senate, he will be automatically substituted in all of the cases in which Ms. Berryhill is a party in her official capacity.  The substitution will be effective as of the date Mr. Saul becomes Commissioner of Social Security.  If, however, the nomination of Mr. Saul fails to pass the U. S. Senate after a vote, then Ms. Berryhill will continue to serve as “Acting Commissioner” until her time expires under the Vacancies Reform Act.  When and if that occurs, Ms. Berryhill’s status will revert to “Deputy Commissioner for Operations, performing the duties and functions not reserved to the Commissioner of Social Security.”

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