St Onge v. Commissioner of Social Security

Filing 37

ORDERED: The parties shall submit a statement on or before November 20, 2020setting forth their position on whether this case should be stayed pending theSupreme Court's disposition of this issue. Failure to comply with this order may result in a stay being entered without further notice. Signed by Judge John L. Badalamenti on 11/16/2020. (SMG)

Case 2:19-cv-00084-JLB-NPM Document 37 Filed 11/16/20 Page 1 of 4 PageID 3256

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION

ALAN M. ST. ONGE, o/b/o MICHAEL
NORMAN ST. ONGE (deceased),
Plaintiff,
v.

Case No.: 2:19-cv-00084-JLB-NPM

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

/
ORDER

This cause comes before the Court upon review of the Report and
Recommendation (“R&R”) issued by the Magistrate Judge on October 30, 2020.
(Doc. 36.) No objections have been filed. See Fed. R. Civ. P. 72(b).
BACKGROUND
Plaintiff Michael Norman St. Onge filed a complaint on February 11, 2019
seeking judicial review pursuant to 42 U.S.C. § 405(g) of the Commissioner’s
decision denying his claim for Social Security disability benefits. (Doc. 1.) During
the pendency of this action, Michael St. Onge passed away and was substituted
with his son, Alan M. St. Onge. (Doc. 33.) The Magistrate Judge recommends
affirming the Commissioner’s decision. (Doc. 23.) Among the arguments raised by
Alan M. St. Onge in the joint memorandum is a challenge under the Appointments
Clause of the U.S. Constitution: whether the Commissioner’s adverse decision must

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be reversed because the presiding Administrative Law Judge (“ALJ”) was
improperly appointed and therefore lacked the legal authority to hear the case. The
Commissioner argued in response that Mr. St. Onge cannot raise an Appointments
Clause challenge in federal court without first having exhausted that claim before
the agency. (Doc. 23, 33–49.)
Appellate courts are split on the administrative exhaustion question. The
Magistrate Judge recommends that the Court adopt the approach taken by the
Eighth and Tenth Circuits, both of which rejected Appointments Clause challenges
by social security claimants because the claimants failed to raise the issue before
their ALJs and thus failed to exhaust their administrative remedies. Mr. St. Onge,
on the other hand, urges the Court to adopt the view of the Third and Sixth
Circuits, which have held that administrative exhaustion before the ALJ is not
required for an Appointments Clause challenge in the social security context.
The Commissioner helpfully notes that the administrative exhaustion
question is currently pending before the Eleventh Circuit. (Doc. 23, 44–45 n.13.)
Although the Commissioner did not identify the appeals in question, the Court
believes the Commissioner is referencing Perez v. Commissioner of Social Security,
Appeal No. 19-11660 (filed Apr. 29, 2019), and Lopez v. Acting Commissioner of the
Social Security Administration, Appeal No. 19-1174 (filed May 3, 2019). The
Supreme Court has recently granted certiorari to resolve the circuit split on this
issue. See Davis v. Saul, 963 F.3d 790 (8th Cir. 2020), cert. granted, 2020 WL
6551772 (U.S. Nov. 9, 2020) (No. 20-105); Carr v. Comm'r, 961 F.3d 1267 (10th Cir.

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2020), cert. granted 2020 WL 6551771 (U.S. Nov. 9, 2020) (No. 20-105). In
response, the Eleventh Circuit has held the Perez and Lopez cases in abeyance,
pending the Supreme Court’s decision.
DISCUSSION
“[T]he power to stay proceedings is incidental to the power inherent in every
court to control the disposition of the causes on its docket with economy of time and
effort for itself, for counsel, and for litigants.” Landis v. Am. Water Works & Elec.
Co., 299 U.S. 248, 254 (1936). In Miccosukee Tribe of Indians v. S. Fla. Water, 559
F.3d 1191, 1196 (11th Cir. 2009), the Eleventh Circuit addressed the propriety of a
federal district court’s discretionary stay where the stay was entered “pending the
outcome of other litigation in federal district court—the appeal of a lawsuit filed in
the same district court.” The court noted that “[t]he Southern District of Florida
simply had two lawsuits raising some potentially dispositive issues common to both.
After one judge entered judgment in the case before her, the second judge stayed
her case to await the outcome of an appeal of that final judgment.” Id. The
Eleventh Circuit stated that “the reason for the district court’s stay was at least a
good one, if not an excellent one: to await a federal appellate decision that is likely
to have a substantial or controlling effect on the claims and issues in the stayed
case.” Id. at 1198. While a stay of indefinite duration might constitute an abuse of
discretion, a “delay not immoderate in extent and not oppressive in its
consequences” is justified “if the public welfare or convenience will thereby be
promoted.” Landis, 299 U.S. at 256.

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To preserve judicial resources and to avoid inconsistent results, the Court
proposes a stay of the case until such time as the Supreme Court has decided the
administrative exhaustion issue before the Court. Given the impact the Supreme
Court’s ruling is likely to have on this case, the Court is persuaded that the most
efficient course would be to enter a temporary stay of this action. See, e.g., Ring v.
City of Gulfport, No. 8:20-CV-593-T-33CPT, 2020 WL 3895435, at *4 (M.D. Fla. July
10, 2020); Glover v. LM Gen. Ins. Co., No. 19-21900-CIV, 2019 WL 7945690 (S.D.
Fla. Dec. 4, 2019).
Accordingly, it is ORDERED that:
1.

The parties shall submit a statement on or before November 20, 2020

setting forth their position on whether this case should be stayed pending the
Supreme Court’s disposition of this issue.
2.

Failure to comply with this order may result in a stay being entered

without further notice.
ORDERED in Fort Myers, Florida, on November 16, 2020.

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