PUBLIC HEARING ON

PROPOSED AMENDMENTS TO THE

FEDERAL RULES OF CIVIL PROCEDURE

JUDICIAL CONFERENCE

ADVISORY COMMITTEE ON CIVIL RULES

Videoconference Hearing

January 22, 2021
Confirmed Witnesses for the

Public Hearing on Proposed Amendments to the 

Federal Rules of Civil Procedure 

Judicial Conference Advisory Committee on Civil Rules *

Via Videoconference

January 22, 2021 – 1:00 P.M.(ET)

Witness Name Organization Testimony / Comments

1 Stacy Braverman Cloyd National Organization of Social 

Security Claimants’ Representatives

Tab 1 and Tab 1A

2 Joanna Suyes Marks & Harrison Tab 2
TAB 1

COMMENT OF

STACY BRAVERMAN CLOYD

NATIONAL ORGANIZATION OF SOCIAL SECURITY 

CLAIMANTS’ REPRESENTATIVES
1

 161 Airport Executive Park • Nanuet, NY 10954

Telephone: (845) 682-1880 • Fax: (845) 517-2277 • email: nosscr@nosscr.org

Government Affairs Office: 1025 Connecticut Avenue, NW Suite 709 • Washington, DC 20036

Telephone: (202) 457-7775 • Fax: (202) 457-7773

Executive Director

Barbara Silverstone

September 16, 2020

The Honorable David G. Campbell

Chair, Committee on Rules of Practice and Procedure 

Judicial Conference of the United States

Dear Judge Campbell,

Thank you for the opportunity to comment on proposed Supplemental Rules for Social Security Review 

Actions Under 42 U.S.C. § 405(g).

These comments are submitted on behalf of the National Organization of Social Security Claimants’ 

Representatives (NOSSCR). NOSSCR is a specialized bar association for attorneys and advocates who 

represent Social Security Disability Insurance (SSDI) and Supplemental Security Income (SSI) 

claimants throughout the adjudicative process. Since 1979, NOSSCR has been providing continuing 

legal education to its thousands of members and public policy advocacy on behalf of its members and 

the people with disabilities they represent.

Are Supplemental Rules Necessary?

We first wish to reiterate NOSSCR’s longstanding position that national uniform procedural rules for 

Social Security cases in federal district court are unnecessary. Social Security cases represent

approximately 7% of the federal docket,1 but there is no compelling reason for them to be treated as 

lesser or different than the other 93% of cases, many of which also involve review of agency decisions.

The existing Federal Rules of Civil Procedure (FRCP) plus local rules or standing orders can 

accommodate Social Security cases without the inflexibility of uniform national rules for specific case 

types. Thus, NOSSCR members oppose amending the FRCP in a way that sets Social Security cases 

apart from other federal court cases. Although NOSSCR members prefer the rules in some districts to 

others (for example, joint statements of facts are widely unpopular), they are not eager to trade local 

flexibility for standardization, given that some judges may feel such idiosyncratic practices are 

necessary for them to provide prompt and accurate decisions. 

 1 http://www.uscourts.gov/sites/default/files/2018-11_civil_rules_agenda_book_0.pdf#page=209
2

Having different rules in different districts or circuits is no more onerous than having different 

precedent in different districts or circuits. Model local rules and/or bench-bar dialogues in each court 

can also help adapt local rules in a manner that maximizes efficiency for judges, court staff, the 

plaintiffs’ bar, and SSA without the need for amending the Federal Rules of Civil Procedure.

NOSSCR does not believe that differing local rules reduce access to representation for Social Security 

claimants. NOSSCR shares the skepticism of several Advisory Committee members about SSA’s 

assertion that uniform procedural rules would save SSA’s attorneys two hours per case. We agree with 

Joshua Gardner’s comment during the November 1, 2018 meeting of the Advisory Committee on Civil 

Rules (the “Committee Meeting”) that if SSA assigned Assistant United States Attorneys or other 

litigators to Social Security cases in specific districts or circuits they would be better able to handle 

differences in local rules.

Although prompt adjudication of federal court cases is an important goal, NOSSCR notes that SSA 

could do more to ensure policy-compliant adjudication of claims before the Commissioner, so that 

fewer appeals to federal court are necessary. NOSSCR agrees with the comments made by Advisory 

Committee members during the Committee Meeting that most of the delays in adjudicating Social 

Security disability claims occur within the agency. SSA recently introduced an additional step before 

claimants can request Administrative Law Judge (ALJ) hearings (the “reconsideration” phase) in ten 

states that had eliminated it for decades. The average time from requesting an ALJ hearing to receiving 

a decision exceeded 500 days in Fiscal Year 2019. It takes additional time for SSA’s Appeals Council 

to process requests for review of ALJ decisions, and of the cases appealed to federal court, SSA 

requests voluntary remand of approximately 15%,2 indicating that the agency could have resolved 

these matters far sooner, and without the need for federal court litigation at all. 

Comments on Proposed Supplemental Rules

Although we do not support the concept of issue-specific supplemental rules, NOSSCR greatly 

appreciates the efforts of the Judicial Conference in making several rounds of revisions to these rules 

before they were formally proposed. The proposed rules are clearer and more neutral than what were 

originally considered. However, we have several outstanding concerns.

Rule 2: Complaint

Inclusion of the last four digits of the Social Security Number (SSN), in combination with a person’s 

name and county of residence, creates a risk of identity theft. In situations where cases are filed and 

served electronically, NOSSCR members have fewer concerns about including a portion of the SSN on 

complaints, given that only the counsel of record would have access to the complaint. When the 

complaint is completed on paper and/or served by mail, NOSSCR members believe that no part of the 

SSN of either the plaintiff or the person on whose wage records benefits are claimed should be included 

on the complaint. Given that SSA is currently moving towards using Beneficiary Control Numbers 

(BCNs) and other alternative forms of identification, it would be better for 2(b)(1)(B) and (C) not to 

require use of any portion of the SSN. As an alternative, SSA could either put a BCN on each Appeals 

 2 Gelbach and Marcus, ACUS Report, “A STUDY OF SOCIAL SECURITY LITIGATION IN THE FEDERAL COURTS” 

(July 28, 2016) p.31. https://www.acus.gov/sites/default/files/documents/2016.07.28%20Report%20-

%20A%20Study%20of%20Social%20Security%20Litigation%20in%20the%20Federal%20Courts.pdf
3

Council denial or other place where it informs claimants about their right to appeal to federal court, or 

contact the plaintiff to obtain the SSN in a private way. Inclusion of the SSN in the complaint should not 

be forbidden, however, for litigants who choose to do so.

NOSSCR strongly supports allowing plaintiffs to plead in more detail than the “short and plain 

statement” proposed in (b)(2). With SSA requesting voluntary remand of approximately 15% of Social 

Security cases in federal district court,3 it is useful for the Commissioner to be aware of all issues that 

might affect whether the agency chooses to defend itself or request remand. 

Failing to plead any of the required elements, such as omitting the title or titles under which the claim is 

brought, failing to identify the plaintiff’s county of residence, or neglecting to mention that relief is 

sought under §405(g) are all mistakes that could easily be made, especially by pro se plaintiffs. They 

should not be grounds for dismissal; at most, plaintiffs should be given leave to amend their 

complaints. The Committee Note expresses this sentiment, but it may be more appropriate to include it 

directly in the rules or in a footnote. 

Rule 3: Service

NOSSCR appreciates that the proposed rule includes a statement waiving Civil Rule 4’s requirements. 

Were this rule to be implemented, SSA would likely have to change its own regulations about how the 

agency is to be served. SSA appears aware of the need to make this change based on the agency’s 

comments it submitted to the draft rules.

The Committee Note says “Filing sent by the court suffices for service, so long as it provides a means of 

electronic access to the complaint.” Some NOSSCR members note that in the district courts where they 

practice, notice to SSA’s OGC and the US Attorney did not permit access to the Court's e-folder: the 

Clerk's office took the position that it could send notice of the suit being brought to the US Attorney and 

OGC but it could not share the contents of the filing since no one had appeared for the 

Commissioner. A change in the Standing Order was needed to give the government full access to the 

Complaint. NOSSCR recommends that this issue be resolved with clerks of all courts before any rule is 

finalized. One option is to use a statement like the one in Connecticut’s standing order that a blanket 

consent by the US Attorney to service by electronic means will be deemed proper service:

In lieu of service of process of the Complaint and related documents by certified mail or in hand, the Clerk 

of the Court shall provide service via the Court’s CM/ECF system to the Commissioner of Social Security 

by electronically serving the Notice of Filing along with a pdf copy of the Complaint on the Social Security 

Administration’s Office of the General Counsel and the United States Attorney’s Office for the District of 

Connecticut. If this process is followed the Defendant has agreed that it will constitute adequate service of 

process.

This type of statement makes clear that the rules do not do away with service but instead that CM/ECF 

service is agreeable to the Commissioner, as memorialized by a blanket consent filed by the US 

Attorney. If the Commissioner or Attorney General so wished, they could file a nationwide blanket 

consent. 

 3 Gelbach and Marcus, ACUS Report, “A STUDY OF SOCIAL SECURITY LITIGATION IN THE FEDERAL COURTS” 

(July 28, 2016) p.31. https://www.acus.gov/sites/default/files/documents/2016.07.28%20Report%20-

%20A%20Study%20of%20Social%20Security%20Litigation%20in%20the%20Federal%20Courts.pdf
4

Rule 4: Answer

NOSSCR members support a rule allowing the Commissioner to submit the certified administrative 

record (CAR) and any affirmative defenses as part of an answer. But the Commissioner should be 

required to respond to all claims and allegations in the complaint as well; proposed rule 4(b) is not 

acceptable. NOSSCR members feel that if the complaint and answer process, including FRCP 8(b), is 

appropriate for other cases adjudicated using the FRCP, it is also appropriate for Social Security 

cases. Were proposed rule 4(b) to be finalized, it would not allow plaintiffs enough information about 

SSA’s position on issues raised in the complaint to write thorough and concise briefs. The 

Commissioner has a variety of mechanisms, such as general denials, to simplify the process of 

writing an answer. One option for the final version of any supplemental rules would be to state that 

filing of the CAR will be deemed a general denial to all allegations except those specifically 

admitted, and a waiver of all affirmative defenses listed in FRCP 8(c).

Although NOSSCR members are generally supportive of the idea that a motion for voluntary remand 

can be made at any time during a case, they believe that the CAR should be filed with such a motion if 

the record has not been filed already.

4 This rule, along with a requirement that the Commissioner 

provide notice before filing a motion to remand, will ensure that plaintiffs can make informed choices 

about whether to consent to voluntary remands.

Rule 6, 7, and 8: Plaintiff’s Brief; Commissioner’s Brief; Reply Brief

NOSSCR’s previous comments recommended that if there are supplemental rules imposing deadlines 

for the submission of plaintiff’s motion for relief and brief, defendant’s response brief, and plaintiff’s 

reply brief, the deadlines should be 60, 60, and 21 days, respectively. We continue to recommend 

those time frames. They are especially important if the Commissioner’s answer is not required to 

respond to claims and allegations asserted against it in the plaintiff’s complaint, because the plaintiff 

will need to anticipate how the Commissioner could respond, and then use the reply brief to address 

how the Commissioner actually does respond. 

The briefs from the plaintiff and Commissioner and plaintiff’s reply briefs are dispositive in the vast 

majority of Social Security cases; giving litigants sufficient time to prepare them will provide judges 

with better information on which to rule. Although the Committee Note states “The court may revise 

these times when appropriate” and while some litigants will likely request extensions no matter the 

deadline, longer deadlines will likely reduce requests for extensions and thus increase efficiency. 

Providing 21 days for plaintiff’s reply brief is strongly preferred to 14 days or less; when deadlines 

are already short, each day matters more and will likely have a larger effect on reducing requests for 

extensions. 

Conclusion

Federal courts are the guarantors of due process for disability claimants. The current FRCP combined 

with local rules are effective; special rules for Social Security litigants are unnecessary. However, if 

 4 The one exception should be situations where the Commissioner is filing a Sentence 6 motion to remand the case because 

the CAR cannot be found. In such cases it would obviously be impossible for the Commissioner to file the CAR with the 

motion.
5

specialized rules are added to the FRCP, we hope that our comments help the Judicial Conference 

provide Social Security litigants the same balances between efficiency and accuracy, and between 

parties, as any other cases adjudicated in federal courts.

Thank you again for the opportunity to comment on these proposed rules. NOSSCR staff and members 

are glad to discuss these comments with you if that would be helpful and plan to participate in the 

upcoming hearings on civil rules. 

Sincerely,

Barbara Silverstone 

Executive Director
TAB 1A

TESTIMONY OUTLINE OF

STACY BRAVERMAN CLOYD

NATIONAL ORGANIZATION OF SOCIAL SECURITY 

CLAIMANTS’ REPRESENTATIVES
1

 161 Airport Executive Park • Nanuet, NY 10954

Telephone: (845) 682-1880 • Fax: (845) 517-2277 • email: nosscr@nosscr.org

Government Affairs Office: 1025 Connecticut Avenue, NW Suite 709 • Washington, DC 20036

Telephone: (202) 457-7775 • Fax: (202) 457-7773

Executive Director

Barbara Silverstone

January 22, 2020

Judge John D. Bates

Chair, Committee on Rules of Practice and Procedure 

Judicial Conference of the United States

Dear Judge Bates and committee members,

Thank you for the opportunity for the National Organization of Social Security Claimants’ 

Representatives (NOSSCR) to comment on proposed Supplemental Rules for Social Security Review 

Actions Under 42 U.S.C. § 405(g). NOSSCR is a specialized bar association. Since 1979, NOSSCR has 

served attorneys and advocates who represent Social Security Disability Insurance (SSDI) and 

Supplemental Security Income (SSI) claimants throughout the adjudicative process. Many of our 

members handle cases in federal court, and for some that is their entire practice. 

My name is Stacy Cloyd and I am NOSSCR’s Director of Policy and Administrative Advocacy. I have 

been grateful to the Judicial Conference and to ACUS for its openness to our feedback over the years 

that the question of specialized rules for Social Security cases has been considered.

NOSSCR’s longstanding position is that national uniform procedural rules for Social Security cases in 

federal district court are unnecessary. Social Security cases represent approximately 7% of the federal 

docket,1 but there is no compelling reason for them to be treated as lesser or different than the other 93% 

of cases, many of which also involve review of agency actions or decisions.2

NOSSCR members oppose amending the FRCP in a way that sets Social Security cases apart from 

other federal court cases. Although NOSSCR members prefer the rules in some districts to others (for 

example, joint statements of facts are widely unpopular), they believe that having different rules in 

different districts or circuits is no more onerous than having different precedents. They respect that 

different judges or districts may have different procedures that help them make prompt and accurate 

decisions. Model local rules and bench-bar dialogues are ways to create effective rules without the 

need to amend the Federal Rules of Civil Procedure.

1 http://www.uscourts.gov/sites/default/files/2018-11_civil_rules_agenda_book_0.pdf#page=209 2 https://fas.org/sgp/crs/misc/R44699.pdf (CRS report on review of agency actions); 

https://cdn.ca9.uscourts.gov/datastore/uploads/guides/stand_of_review/IV_Review_AD.pdf (9th circuit guide to review of 

agency actions)
2

NOSSCR does not believe that differing local rules reduce access to representation for Social Security 

claimants. We are skeptical, as were several advisory committee members, that uniform procedural 

rules would make a significant difference for SSA’s or claimants’ attorneys. Certainly there are other 

ways for SSA to improve efficiency; for example, assigning its attorneys to specific districts or 

circuits, improving processes for generating Certified Administrative Records, and improving 

decisional accuracy at the agency level so fewer cases need to go to federal court at all. These would 

likely have a bigger impact than changing the federal rules. 

Although we do not support the concept of issue-specific supplemental rules, NOSSCR greatly 

appreciates the efforts of the Judicial Conference in making several rounds of revisions to its proposed 

rules, increasing their clarity and equity. 

We do still have a few outstanding concerns. First, in proposed Rule 2 on complaints, we do not think 

the last four digits of the claimant’s or number-holder’s Social Security Number should be required. 

This personal information, in combination with a person’s name and county of residence, creates a risk 

of identity theft. NOSSCR members are less concerned about the SSN in situations where cases are 

filed and served electronically than when the complaint is completed on paper and/or served by mail, 

but in either scenario, inclusion of the SSN does not seem necessary. SSA is currently moving towards 

using Beneficiary Control Numbers (BCNs) and other alternative forms of identification, so the agency 

could either put a BCN on each Appeals Council denial or other place where it informs claimants about 

their right to appeal to federal court, or contact the plaintiff to obtain the SSN in a private way. It would 

be inefficient to have to change the Federal Rules of Civil Procedure to accommodate future changes in 

how claimants are identified, so it would be better to simply leave the SSN out of Rule 2 if these rules 

are finalized. However, inclusion of the SSN in the complaint should not be forbidden for litigants who 

choose to do so.

NOSSCR strongly supports allowing plaintiffs to plead in more detail than the “short and plain 

statement” proposed in Rule 2 (b)(2). SSA requests voluntary remand of approximately 15% of district 

court cases,

3 and it helps everyone if the Commissioner is aware of all issues that might affect whether 

the agency chooses to defend itself or request remand. 

We also suggest that the Committee Note about allowing people leave to amend their complaints if they 

fail to plead any of the required elements be included directly in any finalized rules, or in a footnote. It 

would be easy for someone, especially pro se, to inadvertently omit the title or titles under which the 

claim is brought, the plaintiff’s county of residence, or that relief is sought under §405(g), and it does

not serve the cause of justice to have such cases dismissed. 

For Rule 3 on service, we wanted to note that in some districts that allowed filings sent by the court to 

suffice for service, NOSSCR members reported that notice to SSA’s OGC and the US Attorney did not 

permit access to the Court's e-folder: the Clerk's office took the position that it could send notice of the 

suit being brought to the US Attorney and OGC but it could not share the contents of the filing since no 

one had appeared for the Commissioner. A change in the Standing Order was needed to give the 

3 Gelbach and Marcus, ACUS Report, “A STUDY OF SOCIAL SECURITY LITIGATION IN THE FEDERAL COURTS” 

(July 28, 2016) p.31. https://www.acus.gov/sites/default/files/documents/2016.07.28%20Report%20-

%20A%20Study%20of%20Social%20Security%20Litigation%20in%20the%20Federal%20Courts.pdf
3

government full access to the Complaint. So if any rule on this topic is finalized, NOSSCR 

recommends that this issue be resolved with clerks of all courts before the changes go into effect. Our 

written comments submitted last year includes language from Connecticut’s standing order that might 

be useful. The goal is to clarify that the rules do not do away with service but instead that electronic 

service is agreeable to the Commissioner, as memorialized by a blanket consent filed by the US 

Attorney. If the Commissioner or Attorney General so wished, they could file a nationwide blanket 

consent. 

In proposed Rule 4, NOSSCR members support a rule allowing the Commissioner to submit the 

certified administrative record (CAR) and any affirmative defenses as part of an answer. But the 

Commissioner should be required to respond to all claims and allegations in the complaint as well. 

NOSSCR members feel that if the complaint and answer process, including FRCP 8(b), is appropriate 

for other federal district court cases, it is also appropriate for Social Security cases. Proposed Rule 4(b) 

would not allow plaintiffs enough information about SSA’s position on issues raised in the complaint to 

write thorough and concise briefs. The Commissioner already has mechanisms, such as general denials, 

to simplify the answer-writing process. One option for the final version of any supplemental rules 

would be to state that filing of the CAR will be deemed a general denial to all allegations except those 

specifically admitted, and a waiver of all affirmative defenses listed in FRCP 8(c). Additionally, we 

support the idea that motions for voluntary remand should be permitted at any time during a case, but 

we believe that the CAR should be filed with such a motion if it has not been filed already.

4 This rule, 

along with a requirement that the Commissioner provide notice before filing a motion to remand, will 

ensure that plaintiffs can make informed choices about whether to consent to voluntary remands.

For proposed Rules 6, 7, and 8, NOSSCR has commented in the past that if there are supplemental 

rules imposing deadlines for the submission of plaintiff’s motion for relief and brief, defendant’s 

response brief, and plaintiff’s reply brief, the deadlines should be 60, 60, and 21 days, respectively. We 

continue to recommend those time frames, especially if the Commissioner’s answer would no longer 

need to respond to claims and allegations asserted against it in the plaintiff’s complaint. In that 

scenario, plaintiffs will need to use their briefs to anticipate how the Commissioner could respond, and 

then use the reply brief to address how the Commissioner actually does respond. The vast majority of 

Social Security case are resolved on the briefs, so giving litigants sufficient time to prepare them will 

provide judges with better information on which to rule and potentially reduce requests for extensions. 

In conclusion, we believe that the current Federal Rules of Civil Procedure combined with local rules 

are effective and that it is not necessary to have special rules for Social Security cases. However, if 

subject-specific rules are added to the FRCP, we hope that our comments help the Judicial 

Conference provide Social Security litigants the same balances between efficiency and accuracy, and 

between parties, as any other cases adjudicated in federal courts. 

Thank you again for the opportunity to testify on these proposed rules. I would be happy to answer any 

questions. 

4 The one exception should be situations where the Commissioner is filing a Sentence 6 motion to remand the case because 

the CAR cannot be found. In such cases it would obviously be impossible for the Commissioner to file the CAR with the 

motion.
TAB 2

TESTIMONY OUTLINE OF

JOANNA SUYES

MARKS & HARRISON