Newbill v. Berryhill

Filing 31

ORDER denying 22 Motion to Remand as set out. Plaintiffs appeal of Defendants adverse administrative decision will proceed on the remaining claims. Signed by Magistrate Judge Sonja F. Bivins on 3/28/19. (mpp) Copies to counsel

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
GEORGE ADAM NEWBILL,

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Plaintiff,
vs.
NANCY BERRYHILL,
Deputy Commissioner for
Operations of the Social
Security Administration,
Defendant.

CIVIL ACTION NO. 17-00410-B

ORDER
This action is before the Court on Plaintiff George Adam
Newbill’s (hereinafter “Plaintiff”) Motion for Order of Remand,
the Defendant Commissioner of Social Security (hereinafter “the
Commissioner”)’s

response

in

opposition

Plaintiff’s response. (Docs. 22, 26, 27).1

to

the

motion,

and

Upon consideration,

the Court finds that Plaintiff’s Motion for Order of Remand (Doc.
22) is due to be DENIED.2

1

The Court’s citations to the transcript in this order refer to
the pagination assigned in CM/ECF.
2

On August 16, 2018, the parties consented to have the undersigned
Magistrate Judge conduct any and all proceedings in this case.
(Doc. 23). Thus, the action was referred to the undersigned to
conduct all proceedings and order the entry of judgment in
accordance with 28 U.S.C. § 636(c), Federal Rule of Civil Procedure
73, and S.D. Ala. GenLR 73. (Doc. 24).

I.

Procedural History

Plaintiff protectively filed his application for supplemental
security income benefits on June 16, 2014, alleging disability
beginning December 1, 2013, based on hepatitis C, tonsillitis,
stomach acid, weight loss, stomach ulcers, and seizures.
at 137, 139, 167).

(Doc. 12

Plaintiff’s application was denied by notice

dated October 3, 2014.

(Id. at 84-88).

Upon timely request, he

was granted an administrative hearing before Administrative Law
Judge Laura Robinson (hereinafter “ALJ”) on February 29, 2016.
(Id. at 52).

Plaintiff attended the hearing with his counsel and

provided testimony related to his claims.

(Id. at 54-63).

On May

26, 2016, the ALJ issued an unfavorable decision finding that
Plaintiff is not disabled.

(Id. at 18-35).

A second decision

unfavorable to Plaintiff was issued by the ALJ on August 24, 2016.3
(See

id.

at

5;

Doc.

13

at

1).

The

Appeals

Plaintiff’s request for review on July 15, 2017.
10).

Council

denied

(Doc. 12 at 5-

Therefore, the ALJ’s decision dated August 24, 2016 became

the final decision of the Commissioner.
Having

exhausted

his

(Id. at 5).

administrative

timely filed the present civil action.

remedies,
(Doc. 1).

Plaintiff
After the

parties filed their respective Social Security briefs, Plaintiff

3

The second unfavorable decision is not in the transcript, but it
is referenced in the Appeals Council’s denial dated July 15, 2017,
and in Plaintiff’s brief.

2

filed the instant Motion for Order of Remand on August 16, 2018.
(Doc. 22).

Plaintiff argues that his case must be remanded to the

Commissioner for a new hearing because the ALJ who issued an
unfavorable

decision

on

his

applications

for

Social

Security

benefits should be considered an “Officer of the United States”
who was not properly appointed in accordance with the Appointments
Clause of Article II, Section 2 of the United States constitution,
based on the reasoning in the United States Supreme Court's recent
decision in Lucia v. S.E.C., 138 S. Ct. 2044 (June 21, 2018).
Lucia,

In

the Supreme Court held that ALJs for the Securities and

Exchange Commission (“SEC”) are “Officers of the United States,”
and are therefore subject to the Appointments Clause. 138 S. Ct.
at 2055.

Plaintiff contends that the same reasoning applies to

ALJs who adjudicate Social Security claims.
In

her

response,

the

Commissioner

(Doc. 22 at 1-2).

expressly

declines

to

address whether Social Security ALJs are “Officers of the United
States” subject to the Appointments Clause.

(Doc. 26 at 2 n.1).

Additionally, the Commissioner makes no argument that the ALJ who
decided Plaintiff’s case was constitutionally appointed at the
time

of

Plaintiff’s

administrative

hearing.

Instead,

the

Commissioner argues that Plaintiff has forfeited his Appointments
Clause challenge because he failed to raise the issue at the
administrative level.

For the reasons set forth below, the Court

agrees with the Commissioner.

3

II.

Discussion
The Appointments Clause provides that the President:
Shall nominate, and by and with the Advice and Consent
of the Senate, shall appoint Ambassadors, other public
Ministers and Consuls, Judges of the [S]upreme Court,
and all other Officers of the United States, whose
Appointments are not herein otherwise provided for, and
which shall be established by Law: but the Congress may
by Law vest the Appointment of such inferior Officers,
as they think proper, in the President alone, in the
Courts of Law, or in the Heads of Departments.

U.S. Const. art. II, § 2, cl. 2.
“[O]ne who makes a timely challenge to the constitutional
validity of the appointment of an officer who adjudicates his case
is entitled to a decision on the merits of the question and
whatever relief may be appropriate if a violation indeed occurred.”
Ryder v. United States, 515 U.S. 177, 182-83 (1995). Accord Lucia,
138 S. Ct. at 2055 (“This Court has held that ‘one who makes a
timely challenge to the constitutional validity of the appointment
of an officer who adjudicates his case’ is entitled to relief.”
(quoting Ryder, 515 U.S. at 182-83).

In Ryder, the petitioner was

an enlisted Coast Guard member challenging his conviction by courtmartial.

Ryder, 515 U.S. at 179.

The petitioner appealed his

conviction to the Coast Guard Court of Military Review, and raised
for the first time, before that Court, an Appointments Clause
challenge to the composition of that court.

Id.

After the Court

of Military Review rejected his Appointments Clause challenge and
largely affirmed his conviction, the petitioner appealed to the

4

United States Court of Military Appeals, which agreed that two of
the three judges on the Court of Military Review panel had been
appointed

in

violation

of

the

Appointments

Clause,

but

nevertheless affirmed the petitioner’s conviction on the ground
that the actions of these judges were valid de facto.4

Id. at 179-

80.
On certiorari review, the Supreme Court reversed the Court of
Military Appeals, and held that it had “erred in according de facto
validity to the actions of the civilian judges of the Coast Guard
Court of Military Review.”

Id. at 188.

The Court concluded that

the petitioner had timely raised his Appointment Clause challenge,
and was thus entitled to a hearing before a properly appointed
panel of the Court of Military Review.

Id.

The Court emphasized

that the petitioner “challenged the composition of the Coast Guard
Court of Military Review while his case was pending before that
court on direct review” and “raised his objection to the judges’
titles before those very judges and prior to their action on his

4

“The de facto officer doctrine confers validity upon acts
performed by a person acting under the color of official title
even though it is later discovered that the legality of that
person’s appointment or election to office is deficient. The de
facto doctrine springs from the fear of the chaos that would result
from multiple and repetitious suits challenging every action taken
by every official whose claim to office could be open to question,
and seeks to protect the public by insuring the orderly functioning
of the government despite technical defects in title to office.”
Ryder, 515 U.S. at 180 (internal citation and quotation marks
omitted).

5

case.”

Id. at 182. (emphasis added)

Lucia involved a situation more analogous to Social Security
disability adjudications, where an ALJ issues a decision which is
then subject to review by a higher administrative body prior to
judicial review.

In Lucia, the Court, citing Ryder’s “timely

challenge” holding, held that the petitioner had made such a timely
challenge to the appointment of the SEC ALJ who heard his case
when “[h]e contested the validity of [the ALJ’s] appointment before
the Commission, and continued pressing that claim in the Court of
Appeals and [the Supreme] Court[,]”

Lucia, 138 S. Ct. at 2055,

even though the petitioner had not raised the challenge to the ALJ
himself.

See id. at 2050 (“On appeal to the SEC, Lucia argued

that the administrative proceeding was invalid because [the ALJ]
had not been constitutionally appointed.”).5
The unifying feature of both Ryder and Lucia appears to be
that in both cases, each petitioner first raised his Appointment
Clause challenge to the entity utilizing the deficiently appointed
officials.6

Although the Eleventh Circuit has yet to apply Lucia

5

Plaintiff argues that Lucia “dealt with a different statutory
scheme, the Securities Exchange Act of 1934, which has explicit
issue exhaustion requirements.” (Doc. 27 at 4). However, there
is no indication that the Lucia majority relied on those statutory
exhaustion requirements in finding the petitioner’s Appointments
Clause challenge timely.
Rather, Lucia cited only to Ryder’s
“timely challenge” holding. See Lucia, 138 S. Ct. at 2055.
6

See also NLRB v. RELCO Locomotives, Inc., 734 F.3d 764, 796 (8th
Cir. 2013) (“The waiver doctrine requires a party to make each
6

to a social security case, the majority of courts within this
circuit have interpreted the Supreme Court’s holding to mean that,
in the context of social security disability proceedings, an
Appointments Clause challenge must be raised “before the ALJ’s
decision becomes final,” at the administrative level. Gary v.
Comm'r of Soc. Sec., 2018 U.S. Dist. LEXIS 222662, at *18-19 (M.D.
Fla. Nov. 30, 2018) (citing Stearns v. Berryhill, 2018 U.S. Dist.
LEXIS 156758, 2018 WL 4380984, at *5 (N.D. Iowa Sept. 14, 2018)
and Page v. Comm'r Soc. Sec., 344 F. Supp. 3d 902, 2018 WL 5668850,
at *3 (E.D. Mich. 2018) (“As of this date, the courts that have
considered the issue have unanimously rejected attacks on the
validity of the ALJ’s appointment under Lucia brought under 42
U.S.C. 405(g) where the claimant failed to make a constitutional
challenge at the administrative level.”)). Any challenge to the
constitutional validity of the ALJ’s appointment that was not first
raised at the administrative level is rejected as untimely.

Gary,

2018 U.S. Dist. LEXIS 222662, at *19; Montgomery v. Berryhill,
2018 U.S. Dist. LEXIS 210738, at *1-2 (S.D. Ala. Dec. 14, 2018)
(citing Abbington v. Berryhill, 2018 U.S. Dist. LEXIS 210000, 2018
WL 6571208, at *18 (S.D. Ala. Dec. 13, 2018) (“[T]he undersigned
finds

that

Abbington

has

forfeited

her

Appointments

Clause

argument it wishes to preserve for appeal in a timely fashion
before the original decisionmaker.”).

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challenge to the ALJ who heard her case by failing to raise that
challenge before the Social Security Administration, and Abbington
has not shown sufficient cause to excuse the forfeiture.”)); Wilson
v. Berryhill, 2018 U.S. Dist. LEXIS 210737, at *1-2 (S.D. Ala.
Dec. 14, 2018); see also Meadows v. Berryhill, 2019 U.S. Dist.
LEXIS 29311, at *7 (E.D.N.C. Feb. 25, 2019); see, e.g., Thurman v.
Comm'r of Soc. Sec., 2018 U.S. Dist. LEXIS 153449, 2018 WL 4300504,
at *9 (N.D. Iowa Sept. 10, 2018).

Accordingly, in view of

Plaintiff’s failure to raise the Appointments Clause issue at any
point during the administrative process or to show good cause for
his failure to do so, the Court finds that Plaintiff has forfeited
his Appointment Clause challenge.
III.

Conclusion
For the reasons set forth herein, it is hereby ORDERED that

Plaintiff’s

Motion

for

Order

of

Remand

(Doc.

22)

is

DENIED.

Plaintiff’s appeal of Defendant’s adverse administrative decision
will proceed on the remaining claims.
DONE this 28th day of March, 2019.
/s/ SONJA F. BIVINS
UNITED STATES MAGISTRATE JUDGE

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