Wilson v. Berryhill
Filing
26
ORDER denying 20 Motion to Remand. Signed by Magistrate Judge Katherine P. Nelson on 12/14/18. (srr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
DONNA MARIE WILSON,
Plaintiff,
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v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.
CIVIL ACTION NO. 1:17-00531-N
ORDER
This action is before the Court on the Motion for Order of Remand (Doc. 20)
filed by Plaintiff Donna Marie Wilson.
The Defendant Commissioner of Social
Security (“the Commissioner”) has timely filed a response (Doc. 22) in opposition to
the motion, and Wilson has timely filed a reply (Doc. 23) to the response. The motion
is now under submission.
Wilson’s present motion asserts that her case must be remanded to the
Commissioner for a new hearing because the Administrative Law Judge who issued
an unfavorable decision on her application 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 Lucia v. SEC, 138 S. Ct. 2044 (2018). In response, the Commissioner argues
that Wilson forfeited this claim by failing to raise it at the administrative level.1 In
The Commissioner expressly declines to argue whether Social Security ALJs are
“Officers of the United States” subject to the Appointments Clause (see Doc. 22 at 2
1
reply, Wilson, while conceding that she did not raise her Appointments Clause
challenge at the administrative level, argues that she was not required to do so in
order to preserve that claim for judicial review, and alternatively that the Court
should exercise its discretion to excuse any forfeiture of the claim.
For the reasons stated in Abbington v. Berryhill, No. CV 1:17-00552-N, 2018
WL 6571208 (S.D. Ala. Dec. 13, 2018), the Court finds that Wilson has forfeited her
Appointments Clause challenge by failing to first raise it before the Social Security
Administration, and Wilson has not shown sufficient cause to excuse the forfeiture.
Accordingly, Wilson’s Motion for Order of Remand (Doc. 20) is DENIED.2
DONE and ORDERED this the 14th day of December 2018.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE
n.1), and the Court expresses no opinion on that issue.
With the consent of the parties, the Court has designated the undersigned
Magistrate Judge to conduct all proceedings in this civil action, in accordance with
28 U.S.C. § 636(c), Federal Rule of Civil Procedure 73, and S.D. Ala. GenLR 73. (See
Docs. 17, 19).
2
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