Reaching the Supreme CourtWillie Earl Carr et al vs Saul By Paul F. McTighe, Jr., Attorney at law

Reaching the Supreme Court

Willie Earl Carr et al vs Saul

By Paul F. McTighe, Jr., Attorney at law

On April 22, 2021 I received an e-mail from Sarah Harris, of Williams and Connolly of Washington DC that we won the Carr case. The case of Willie Earl Carr et al v Saul, Commissioner of Social Security was decided by the Supreme in favor of my clients, Carr and Kim L. Minor in a 9 to 0 decision. The Carr and Minor cases were in the Federal Court system since 2018. This article will describe how the cases reached the Supreme Court. My story really goes back 50 years to my arrival in Tulsa in September 1970 for law school

I moved to Tulsa in September 1970 from Western Pennsylvania to go to law school at the University of Tulsa. At that time the TU law school was not on campus, it was in a small two story building (law library in the basement) on South Cincinnati. My aim was to learn oil and gas law and return to Pennsylvania.

I did well at TU. I was ranked 7th in my class of 58 (December 1972), was on the Dean’s Honor Roll, was a member of the Law Journal and received a John Rogers Scholarship for several trimesters. Instead of returning to my home state, I stayed in Tulsa. I had something like 14 job interviews with law firms, Legal Aid, the District Attorney’s Office, the City Prosecutor’s Office and several Oil Companies. I struck out 14 times.

After about 5 months of unsuccessful job hunting, I decided to open my own office without any contacts or clients. I borrowed $1,500.00 from a bank with my dad’s co-signature. The first years were very slow. After about a year in my first office I moved my office into a suite with

two other young attorneys, David L. Peterson (later Judge Peterson) and Eric Eli Anderson. Our offices were in the Beacon Building and we were able to build our practices. I handled civil cases and did a number of small jury trials. I also handled a lot of real estate lien work for material companies and tradesmen.

Sometime in June 1979 a client came to me from the TCBA Lawyer Referral Service. At that time the TCBA office was also in the Beacon Building. He was a 57 year old carpenter who had permanent damage to the use of his right arm. He was there to see me about a Social Security Disability case. He had tried to represent himself with regard to the case. He had waived his hearing and had also lost at the Appeals Council. His case had to go to the District Court. I actually liked Federal Court. I also liked the fact that things were more orderly and quicker than the State Courts. I also liked the fact that the Federal Court was a quiet place.

I looked at the man with the Social Security case telling him honestly that I do not know anything about Social Security, but I would take on his case. I quickly found that in 1979 Tulsa Attorneys did not want anything to do with Social Security Disability cases. I also found that because lawyers would not take the cases there was very little Court precedent in the field. I put together a brief for District Judge H. Dale Cook. Judge Cook had previously been Chief Administrative Law Judge for the Social Security Administration. Judge Cook granted a remand. I ultimately won the client’s case. From that point on, Social Security Disability cases dominated my practice. I was the first attorney in the Tulsa area to work exclusively on Social Security Disability cases. Today there are many more attorneys working on these cases.

I took a number of cases to the Tenth Circuit Court of Appeals in Denver. Most of those cases involved oral argument in Denver. Between my efforts and the efforts of Eric Melders of Oklahoma City, Mark Buchner of Tulsa and Gary Martone of Albuquerque, we established precedent in the field of Social Security Disability in the Tenth Circuit.

At one point, in the late 1990s I had an office staff of 14 people, including three other attorneys, also my wife, and my father-in-law. We had approximately 1,200 active files. At this point, my office involves myself and 1½ employees. I only practice Social Security Disability Law, including appeals to the Federal Courts.

In 2015, two separate Tulsa attorneys referred the cases of Willie Carr and Kim Minor to my office. I represented the clients at the Administrative hearings and was denied. The Appeals Council of the Social Security Administration also denied the cases. Accordingly, I appealed both cases to the United States District Court in Tulsa. The District Court acts as an appeals court in these cases. After the cases were filed in the District Court, the U.S. Supreme Court held in the Lucia v SEC case that the SEC Administrative Law Judges were appointed contrary to the Appointments Clause of the U.S. Constitution.

I looked at the Lucia case and decided it could be applied to the Social Security ALJ system. I raised that issue in my District Court briefs. In June 2019, Magistrate Judge McCarthy agreed with my argument. Up to that point, 60 different district courts had ruled on the issue. Only four districts ruled in favor of the claimants, including the Northern District of Oklahoma. The issue was not whether the ALJs were appointed illegally. The government conceded that issue. However, the government argued that the claimants waived or forfeited the issue by not raising it first before the Social Security Administration. When I won, I checked with several other attorneys in the Tulsa area and found that my cases were the only ones raising the Appointments Clause issue.

The government appealed the Carr and Minor cases.

In the meantime, the Northern District ruled favorably on a number of other cases I filed with the same issues. The Tenth Circuit overturned the Northern District. I was fortunate to connect with Williams and Connolly in Washington DC for the Supreme Court portion of the case. Attorneys Lisa Blatt and Sarah Harris at that firm are Supreme Court Superstars in my opinion. Within two weeks of the Tenth Circuit decision, they put together our Petition for Writ of Certiorari. The government conceded that the Writ should be granted because there was a split among the Circuits and Federal law was involved.

On November 5, 2020 the Supreme Court granted cert, combining our case with an 8th Circuit case. The briefing included 9 amicus briefs. By the time of oral argument, my two humble disability appeals involved 48 attorneys. The attorneys in the 8th Circuit case and our cases had to decide who would argue the case. They were at a standoff, so a coin flip decided that Sarah Harris of Williams and Connolly would argue the case. Oral arguments were held on March 3, 2021. The Supreme Court does not allow cameras in the Court, but does permit audio streaming through C-Span. Also, the arguments were handled by telephone with the Justices in other locations at this time due to COVID restrictions. I listened to the oral arguments and was impressed with the presentation of Ms. Harris. She was a former law clerk to Justice Thomas. Justice Thomas actually had a few questions even though he rarely asks questions.

The end result of the case was a 9 to 0 decision entered on April 22, 2021. Justice Sotomayor issued the majority opinion with concurring decisions by Justices Thomas and Breyer. The clients along with 20 other of my clients will receive new hearings with a different ALJ. The Social Security Administration reappointed the ALJs legally after the Lucia opinion.

I believe that the Carr and Minor cases are the first Social Security Disability cases from Oklahoma to reach the United States Supreme Court.

I am grateful for several things involving these cases: 1.) Thank you to the University of Tulsa, College of Law. I like to think that the Law School invested in me as a student and an attorney. I also like to think that I have a professional and emotional tie to the Tulsa Law School; 2.) Thank you to the Attorneys who referred Willie Earl Carr and Kim L. Minor to my office. I do not advertise and never have. I believe I have a face for radio and an ad with me on television would not work well. I do, however, believe strongly in the word of mouth approach. It has worked for me; 3.) Thank you to divine providence, in connecting me with Sarah Harris and Lisa Blatt of Williams and Connolly. We have become more then co-counsel I consider them my friends. We shared photos of our dogs. Sarah sent me a photo of her young children at Christmas. It is nice to have friends in the legal profession.

I have now been in private law practice in Tulsa for 48 years. The old saying is that it is not over until the fat lady sings. That might apply to me now. I think, however, that in my case she is not singing but she is humming very loudly.

Paul F. McTighe, Jr. Attorney at law

pmctighe@mctighejr.com

TCBA WANTS YOU!

• VOLUNTEER FOR "CAP"- COURT ASSISTANCE

PROGRAM FORCIBLE ENTRY & DETAINER ("EVICTION" DOCKET) • EVERY DAY - EXCEPT WEDNESDAY

• 2 PM

• JUVENILE JUSTICE CENTER - 500 W. ARCHER • FREE PARKING. CONTACT:

BETH NELLIS, CAP COORDINATOR

bethnellis@cox.net or 918-760-3945