Fortin v. Social Security

Filing 53

ORDER Denying 45 Motion for Attorney Fees. Signed by District Judge David M. Lawson. (SPin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JOSEPH A. FORTIN,
Plaintiff,

Case Number 18-10187
Honorable David M. Lawson
Magistrate Judge Elizabeth A. Stafford

v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
______________________________________/

ORDER DENYING MOTION FOR ATTORNEY’S FEES
Plaintiff Joseph A. Fortin moves the Court for an order awarding attorney’s fees under the
Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d). Fortin appealed the Commissioner’s
denial of his request for disability benefits under Title II of the Social Security Act. After filing a
complaint and motion for summary judgment before this Court, he filed a supplemental brief
arguing that the administrative law judge (ALJ) that decided his case had not been appointed
consistently with the Appointments Clause of the constitution. U.S. Const. art. II, § 2, cl. 2. The
Commissioner opposed that argument, contending that Fortin forfeited the issue by failing to raise
it before the agency. The magistrate judge agreed with Fortin and, although she found the ALJ’s
decision sound on the merits, recommended that the Court remand the case for a rehearing before
a properly appointed ALJ. The Court disagreed, held that Fortin forfeited his Appointment’s
Clause argument, and affirmed the findings of the Commissioner. Fortin appealed that decision.
At the time, no appellate court had issued a decision on the forfeitability of an
Appointments Clause challenge, but the vast majority of district courts agreed with the
Commissioner’s position. Appellate courts began addressing the issue in 2020, which quickly
resulted in a circuit split. In September 2020, the Sixth Circuit ruled in Fortin’s favor and held
-1-

that Social Security claimants may raise Appointment Clause challenges before federal courts
without first raising them before the agency. The Supreme Court adopted that same position in
early 2021.
Fortin now seeks attorney fees under the EAJA because he was a prevailing party.
However, to receive an award under that statute, Fortin must demonstrate that the Commissioner’s
position was not substantially justified. The record amply shows that the Commissioner’s
argument was reasonable, as demonstrated by the plethora of decisional law from both district and
appellate courts adopting the Commissioner’s position. The motion for attorney’s fees under the
EAJA will be denied.
I.
On September 28, 2016, an ALJ denied Joseph Fortin’s request for disability income
benefits under Title II of the Social Security Act. The Appeals Counsel denied Fortin’s request
for review of the ALJ’s decision on November 28, 2017. Fortin then filed a complaint seeking
judicial review of the denial of his requested benefits. The case was referred to United States
Magistrate Judge Elizabeth A. Stafford pursuant to 28 U.S.C. § 636(b)(1)(B) and E.D. Mich. LR
72.1(b)(3). Both parties filed motions for summary judgment in mid-2018. While the motions
were pending, the Supreme Court decided Lucia v. Securities and Exchange Commission, which
held that administrative law judges working for the Securities and Exchange Commission are
“inferior officers,” who must be appointed under the Appointments Clause of the United States
constitution. --- U.S ---, 138 S. Ct. 2044, 254-55 (2018); U.S. Const. art. II, § 2, cl. 2. Based on
that decision, Fortin supplemented his motion for summary judgment on September 28, 2018,
arguing that the administrative law judge who decided the case was not properly appointed under
the Appointments Clause. On October 4, 2018, the Commissioner responded that Fortin forfeited
-2-

his argument because he failed to raise the issue at the administrative level.

When the

Commissioner raised this argument, neither the Sixth Circuit nor the Supreme Court had opined
whether forfeiture was a valid defense for the Commissioner under these circumstances, and the
issue was a close question of unsettled law.
The magistrate judge agreed with Fortin and on February 1, 2019 issued a report on the
parties’ cross motions for summary judgment, recommending that the Court grant Fortin’s motion
and deny the Commissioner’s motion.

However, the magistrate judge agreed with the

Commissioner on the merits that the ALJ properly evaluated the medical opinion evidence,
considered the side-effects of Fortin’s medication, and assessed Fortin’s residual functional
capacity.
Both parties objected to the report. The Commissioner reiterated that Fortin forfeited his
Appointments Clause argument by failing to raise it before the agency. The Court agreed with
the Commissioner and sustained his objections, overruled Fortin’s objections (which were focused
on the merits), adopted in part and rejected in part the magistrate judge’s report, denied Fortin’s
motion for summary judgment, granted the Commissioner’s motion for summary judgment, and
affirmed the findings of the Commissioner.
Fortin appealed the decision on May 25, 2019, and the Sixth Circuit consolidated his case
with four others presenting the same Appointment Clause forfeiture issue. While Fortin’s case
was pending, several appellate courts ruled on the forfeiture issue beginning in early 2020. The
Third Circuit issued the first decision in January 2020, in which it held that claimants may
challenge the constitutionality of a Social Security administrative law judge’s appointment for the
first time in federal court. Cirko v. Comm’r of Soc. Sec., 948 F.3d 148, 152 (3d Cir. 2020). The
Eighth and Tenth Circuits arrived at the opposite conclusion later that year. Davis v. Saul, 963
-3-

F.3d 790, 793 (8th Cir. 2020); Carr v. Comm’r of Soc. Sec., 961 F.3d 1267, 1268 (10th Cir. 2020).
On September 1, 2020, the Sixth Circuit joined the Third Circuit and held in a 2-1 decision that “a
claimant does not forfeit an Appointments Clause challenge in a Social Security proceeding by
failing to raise that claim before the agency.” Ramsey v. Comm’r of Soc. Sec., 973 F.3d 537, 547
(6th Cir. 2020). Judge Siler wrote a dissenting opinion, explaining that he would have held that
claimants in Social Security appeals must assert objections to the presiding ALJ “at or before the
time of the ALJ hearing” to “promot[e] both judicial and agency efficiency” and prevent claimants
from getting “two bites at the apple.” Id. at 547-48. The Fourth Circuit joined the Third and Sixth
Circuit’s position in November 2020. Probs v. Saul, 980 F.3d 1015 (4th Cir. 2020).
On January 29, 2021, the Commissioner filed a petition for a writ of certiorari in Ramsey.
But on April 22, 2021, the Supreme Court resolved the issue, finding that claimants did not forfeit
their Appointment Clause challenges by failing to raise them at the administrative level. Carr v.
Saul, --- U.S.---, 141 S. Ct. 1352, 1356 (2021). After the Supreme Court’s decision, Fortin moved
the Sixth Circuit to remand this case to the district court and issue the mandate. The Sixth Circuit
granted Fortin’s motion, which the Commissioner did not oppose.
On May 28, 2021, the Court remanded the case to the Commissioner for a new hearing
before a properly appointed ALJ. After unsuccessfully attempting to negotiate an attorney’s fee
award, Fortin filed the present motion for attorney’s fees under the Equal Access to Justice Act on
July 20, 2021, seeking fees in the amount of $27,704.55 and expenses in the amount of $400,
representing about 145.05 hours of work at a rate of $191.00 per hour.
II.
A party who prevails against the United States in a civil case may recover attorney’s fees
“unless the court finds that the position of the United States was substantially justified or that
-4-

special circumstances make an award unjust.” 28 U.S.C. § 2412(d)(1)(A); DeLong v. Comm’r of
Soc. Sec. Admin., 748 F.3d 723, 725 (6th Cir. 2014) (citing Marshall v. Comm'r of Soc. Sec., 444
F.3d 837, 840 (6th Cir. 2006)). A position is “substantially justified” if “a reasonable person could
think it correct” and “it has a reasonable basis in law and fact.” Pierce v. Underwood, 487 U.S.
552, 566 n.2 (1988). “While ‘objective indicia’ of reasonableness — such as a dissenting opinion,
the views of other courts, ‘a string of losses’, or a ‘string of successes’ — may be relevant, it is
‘the actual merits of the Government’s litigating position’ that matter most.” Griffith v. Comm’r
of Soc. Sec., 987 F.3d 556, 563 (6th Cir. 2021) (quoting United States ex rel. Wall v. Circle C
Constr., LLC, 868 F.3d 466, 471 (6th Cir. 2017)).

Because the Court must consider the

government’s position “as a whole,” Amezola-Garcia v. Lynch, 835 F.3d 553, 555 (6th Cir. 2016),
it must evaluate the government’s position before and during litigation, Griffith, 987 F.3d at 564.
The parties here do not dispute that Fortin prevailed on the Appointments Clause issue.
Fortin argues, therefore, that he is entitled to fees because the Commissioner’s position was not
substantially justified because the government’s forfeiture argument was novel and not supported
by law when it was raised. He also insists that there are no special circumstances that make his
requested award unjust. The government disagrees, contending that its forfeiture argument was
supported by long-standing general principles.
A.
Fortin first asserts (ironically) that the Commissioner waived the agency’s only viable
affirmative defense — the special circumstances defense. The special circumstance defense,
which is distinct from the substantial justification defense, allows the government to pursue novel
but credible extensions of the law. DeLong, 748 F.3d at 725; Brinker v. Guiffrida, 798 F.2d 661,
663, 664 (3d Cir. 1986) (“The legislative history suggests that this provision is a ‘safety valve’ to
-5-

protect the government's good faith advancement of ‘novel but credible extensions and
interpretations of the law.’”). Because the Commissioner raised a substantial justification defense
only, says Fortin, the agency waived any special circumstances defense it may have had. Ibid.
According to Fortin, the Commissioner sought to expand the law; therefore, only the special
circumstances defense is viable, and the Court should disregard the Commissioner’s arguments
because the Commissioner did not raise them properly.
The problem with Fortin’s argument is that the Court expressly found that “this issue is not
novel,” that it had “come up in dozens of Social Security cases” throughout the course of Fortin’s
litigation, and that “district courts across the country ‘overwhelmingly’ have endorsed the
Commissioner’s position.” Fortin v. Comm’r of Soc. Sec., 372 F. Supp. 3d 558, 563 (E.D. Mich.
2019), rev’d by Ramsey, 973 F.3d 537; see also Montoya v. Kijakazi, No. 19-0027, 2021 WL
3602427, at * (D.N.M. July 20, 2021) (“The Appointments Clause argument itself was being
litigated in various other cases in this district and at the circuit level; as such, counsel was not
presenting it as a novel argument for the first time in this case.”). This issue is hardly about a
novel extension of the law, and the Commissioner properly framed it as a substantial justification
inquiry. The proper question here is whether the Commissioner’s decision to deny Fortin’s
benefits, and to defend the denial, was substantially justified.
B.
The Commissioner’s position was substantially justified during Fortin’s proceedings
before the agency. For starters, it is undisputed that Fortin never raised the issue at any point
during the agency proceedings. And he has not identified any authority for the proposition that
the Commissioner had a duty to raise the Appointments Clause issue on its own or that the ALJ
needed to address the issue before conducting the proceeding. See Rich v. Comm’r of Soc. Sec
-6-

Admin, 477 F. Supp. 3d 388, 394 (E.D. Penn. 2020) (“We see no support imposing a sua sponte
obligation on the Commissioner to raise Appointments Clause challenges.”)
More importantly, the timeline of events supports the government’s position. Fortin’s
proceedings before the agency concluded in late 2017; the ALJ denied his benefits request in
September 2016, and his appeal was denied in November 2017. The Supreme Court decided Lucia
months later, on June 21, 2018, holding that administrative law judges in the Securities Exchange
Commission must be appointed consistent with the Appointments Clause. 138 S. Ct. at 2054-55.
Therefore, by the time Fortin lost at the agency level, “the constitutional appointment status of
Social Security administrative law judges had not been declared,” and the Commissioner is not
expected nor required “to predict how the judiciary will interpret the Constitution in conducting
administrative proceedings among varied interpretations.” Rich, 477 F. Supp. 3d at 394 (citations
omitted) (finding that Commissioner’s forfeiture position, which eventually was rejected by the
Third Circuit and Supreme Court, was substantially justified at the time). Moreover, there was,
and still is, a long-standing principle that a litigant who does not timely raise an argument before
an administrative agency forfeits that argument. United States v. L.A. Tucker Truck Lines, Inc.,
344 U.S. 33, 38 (1952); Elgin v. Dep’t of Treasury, 567 U.S. 1, 23 (2012); Jones Bros., Inc. v.
Sec’y of Labor, 898 F.3d 669, 677 (6th Cir. 2018) (finding Appointments Clause challenge
forfeited but excusing forfeiture based on specific statutory scheme).
Fortin disagrees. Citing Sims v. Apfel, 530 U.S. 103 (2000), he argues the law at the time
clearly established that he had no obligation to raise issues to the Appeals Counsel to preserve
them for judicial review. He further accuses the Commissioner of violating agency regulations
that require hearings be informal and non-adversarial, citing 20 C.F.R. §§ 404.900(b);
416.1400(b). It is true that the Supreme Court held in Sims that “a claimant pursuing judicial
-7-

review has [not] waived any issues that he did not include in [his or her] request” for review by
the Appeals Council. Id. at 105. But that proposition was not nearly as well established in the
Appointments Clause context as Fortin contends. This Court previously identified three reasons
why.
First, the issues that the Sims case raised on judicial review concerned the ALJ’s disposition
of the evidentiary material before them, not the authority of the decisionmaker, and therefore the
forfeiture question arose in a “vastly different substantive and procedural setting.” Fortin, 372 F.
Supp. 3d at 565. The Court found that “where the challenge is to the structural integrity of the
process itself, the adversarial nature of the litigation, [as opposed to the informal nature prescribed
by agency’s regulations] reemerges.” Ibid. Second, the Sims Court addressed the exhaustion issue
at the administrative appeal level; it “specifically did not consider the wisdom of requiring issue
exhaustion at the ALJ level, nor did it furnish a justification for departing from the general rule
requiring it.” Ibid. “Third, the Sims claimant presented issues to the district court for judicial
review that the Appeals Council naturally would have had to consider in making its ‘inquisitorial’
disability determination.” Ibid. Although nothing in Sims tied the application of the issueexhaustion rule to the nature of the issues raised, this Court found that it established an exception
to an “ordinary principle[] of administrative law,” Sims, 530 U.S. at 114 (Breyer, J., dissenting),
that deserved some measure of justification, which was lacking, Fortin, 372 F. Supp. 3d at 565.
The Court’s decision on this point was not anomalous; before the Supreme Court issued its
decision in Carr, “nearly every court to address the issue in the context of the Social Security
Administration . . . has summarily denied the claim . . . , citing a claimant’s forfeiture by failing to
first raise the claim before the ALJ.” Gothard v. Comm’r of Social Sec., No. 17-13638, 2019 WL
396785, at *4 n.4 (E.D. Mich. Jan. 31, 2019) (collecting cases).
-8-

The Commissioner’s decision not to raise an unestablished issue on its own initiative at the
agency level therefore was substantially justified.
C.
The Commissioner had a reasonable basis in law for arguing that Fortin forfeited his
Appointments Clause challenge. When the parties briefed this issue before the Court in late 2018,
it had not been addressed by any appellate courts. The same is true when the parties filed their
briefs on appeal in late 2019. However, before and after Fortin appealed the Court’s decision, “the
vast majority of district courts,” including this Court, had ruled in the Commissioner’s favor,
finding that claimants forfeited their potential Appointments Clause challenges by failing to raise
them before the agency. Mikarovski v. Saul, No. 18-90, 2019 WL 8112167, at *9 n.9 (N.D. Iowa
Dec. 30, 2019), R. & R. adopted, 2020 WL 362639 (N.D. Iowa Jan. 21, 2020); Fortin, 372 F. Supp.
3d at 567-68 (collecting cases). While the case was pending before the Sixth Circuit, several courts
of appeals began addressing the issue, which quickly developed into a circuit split. By the time
the Sixth Circuit ruled in favor of Fortin in September 2020, Ramsey, 973 F.3d at 547, the Third
Circuit had supported Fortin’s position, Cirko, 948 F.3d at 152, but the Eighth and Tenth Circuits
ruled in favor of the Commissioner, Davis v. Saul, 963 F.3d at 793; Carr, 961 F.3d at 1268. Thus,
it is evident that the Commissioner relied on numerous cases that weighed in favor of its forfeiture
position.
Although not necessarily dispositive, the Supreme Court noted that a “string of successes”
is strong support for the reasonableness of the government’s position. Pierce, 487 U.S. at 569.
And in other contexts, the Sixth Circuit has found the government’s position substantially justified
where it had been accepted by other courts. Younger for Younger v. Sec’y of Health & Human
Servs., 910 F.2d 319, 321 (6th Cir. 1990) (“While a panel of this Court ultimately determined that
-9-

the Secretary’s legal conclusions were not correct, they were not out of line with prior decisions
that had been affirmed by other courts.”). Additionally, the Sixth Circuit recently noted that a
dissenting opinion is relevant to whether the government’s position is substantially justified.
Griffith, 987 F.3d at 562-63. Judge Siler filed a dissenting opinion in Ramsey. 973 F.3d at 54758. The extensive authority supporting the Commissioner’s position before it was ultimately
rejected shows that the agency took a reasonable position on an unsettled question of law.
Not only was the Commissioner’s position supported by “a string of successes,” Pierce,
487 U.S. at 569, but the agency’s “litigating position” itself was reasonable, Griffith, 987 F.3d at
563. Courts have found that “[r]egularly permitting unsuccessful claimants to raise Appointments
Clause challenges for the first time on judicial review, especially when the arguments underlying
those challenges were available at the administrative level, would ‘encourage the practice of
‘sandbagging’: suggesting or permitting, for strategic reasons, that the [adjudicative entity] pursue
a certain course, and later — if the outcome is unfavorable — claiming that the course followed
was reversible error.’” Abbington v. Berryhill, No. 17-00552, 2018 WL 6571208, at *7 (S.D. Ala.
Dec. 13, 2018) (quoting Freytag v. Comm’r of Internal Revenue, 501 U.S. 868, 895 (1991) (Scalia,
J., concurring in part and concurrent in the judgment)).
Although the forfeiture position ultimately failed, it was not so off base that a reasonable
person could not “think it correct.” Pierce, 487 U.S. at 566 n.2. The Commissioner identified
several decisions, including one within this circuit, holding that the Commissioner’s forfeiture
position was substantially justified. Rager v. Saul, No. 19-00140, 2021 WL 374477, at *2 (W.D.
Ky. Feb. 3, 2021); Rich, 477 F. Supp. 3d at 393-98; Hines v. Comm'r of Soc. Sec., No. 18-16037
(SRC), 2020 WL 3396801, at *1-3 (D.N.J. June 18, 2020).

- 10 -

D.
Citing the Sixth Circuit’s rejection of the Commissioner’s argument and the Supreme
Court’s 9-0 decision against the Commissioner — “the most resounding defeat imaginable” —
Fortin insists that the Commissioner’s position was completely baseless and misled the Court.
Reply ECF No. 47, PageID.956 (citing Carr, 141 S. Ct. 1352). But there is no evidence that the
government deliberately misled “[t]he vast majority of district courts,” including this Court.
Mikarovski, 2019 WL 8112167, at *9 n.9. Rather, it is clear that at the time the Commissioner
raised this argument, the issue was unsettled, and a significant amount of decisional authority
supported the agency’s view. And although the Supreme Court had issued its decision in Lucia
when the Commissioner litigated before this Court and the Sixth Circuit, the case did not address
the question of administrative forfeiture presented in this case. Lucia, 138 S. Ct at 2049. To the
contrary, Lucia noted the need to “timely” raise challenges under the Appointments Clause. 138
S. Ct. at 2055. All Fortin has shown, therefore, is that the Commissioner took a position in an
unsettled legal landscape that persuaded many district courts and two circuit courts, but not the
Supreme Court.

And as soon as the Supreme Court rendered its decision in Carr, the

Commissioner fell in line and did not oppose Fortin’s motion to remand the case.
E.
Fortin next argues that the Commissioner’s position cannot be justified as a matter of law
because the agency violated Fortin’s constitutional rights. Yang v. Shalala, 22 F.3d 213, 217 (9th
Cir. 1994); see also Morgan v. Perry, 142 F.3d 670 (3d Cir. 1998) (stating that “in the usual case,
a constitutional violation will preclude a finding that the government’s conduct was substantially
justified.”). Those cases are inapposite. First, both cases address due process violations, not
violations of the Appointments Clause. Yang, 22 F.3d at 217 (“The Secretary violated [the
- 11 -

plaintiff’s] due process rights by not making the determination based on evidence adduced at the
hearing.”); Morgan, 142 F.3d at 684 (holding that the Deputy Staff Judge Advocate’s “conduct
during the week preceding the scheduled court-martial violated [the plaintiff’s] Fifth Amendment
procedural due process rights”). Second, they do not establish a bright-line rule; despite a due
process violation, the Third Circuit in Morgan nevertheless found the government’s position
substantially justified. Morgan, 142 F.3d at 690. Third, the Commissioner’s position does not
endorse a violation of Fortin’s constitutional rights; rather, the Commissioner simply argued that
Fortin did not raise his Appointments Clause argument in a timely manner.
F.
Next, Fortin contends that the Commissioner violated the agency’s own policies in
asserting its forfeiture position. He identifies three such policies. First, Fortin cites an updated
emergency message issued by the SSA’s Office of Hearings Operations on August 6, 2018, about
two years after the ALJ denied Fortin’s request for benefits, which supposedly demonstrates that
ALJs are powerless to adjudicate Appointment Clause challenges to their authority. The message
directed ALJs who are or have been presented with Appointments Clause challenges after July 16,
2018 — the date on which the Acting Commissioner ratified the appointment of ALJs by
approving the appointments as her own to cure any constitutional error — only to respond orally
at the hearing that “the hearing decision will acknowledge that the argument was raised” and to
acknowledge in the written determination that the ratification of the ALJ’s appointment renders
the argument meritless.

See Social Security Administration EM-18003 REV 2, Important

Information Regarding Possible Challenges to the Appointment of Administrative Law Judges in
SSA’s Administrative Process—UPDATE. If the challenge was raised before July 16, 2018,

- 12 -

however, the message indicated that the challenge was “acknowledged in the record and entered
into the agency’s case processing systems for any necessary action.” Ibid.
This Court already addressed this policy statement, finding that the Supreme Court offered
good reasons why a seemingly rigid agency policy against a litigant’s position should not exclude
the requirement to raise objections at the administrative level. See L.A. Tucker, 344 U.S. at 37
(“Simple fairness to those who are engaged in the tasks of administration, and to litigants, requires
as a general rule that courts should not topple over administrative decisions unless the
administrative body not only has erred but has erred against objection made at the time appropriate
under its practice.”). Moreover, Jones Brothers, Incorporated v. Secretary of Labor, 898 F.3d 669
(6th Cir. 2018), decided about one month after Lucia, supports the conclusion that Social Security
ALJs have the power to resolve Appointments Clause claims. The court explained that ALJs have
the power to decide as-applied challenges to their appointments, but they cannot adjudicate facial
challenges. See id. at 674-75. It found no exception to the general rule that “[a]dministrative
exhaustion is thus typically required so long as there is ‘the possibility of some relief for the action
complained of,’ even if it is not the petitioner’s preferred remedy.” Id. at 676 (quoting Booth v.
Churner, 532 U.S. 731, 738 (2001)).
Second, Fortin points to Social Security Ruling 19-1p (effective March 15, 2019), which
was intended to grant relief to any claimant who “(1) timely requests Appeals Council review of
an ALJ’s decision or dismissal issued before July 16, 2018 [the date the Commissioner ratified the
appointments]; and (2) raises before [the agency] (either at the Appeals Council level, or
previously had raised at the ALJ level) a challenge under the Appointments Clause to the authority
of the ALJ who issued the decision or dismissal in the case.” SSR 19-1p, 2019 WL 1324866.
According to Fortin, then, the agency’s policy statement, which was both prospective and
- 13 -

retrospective in effect and held that a claimant never need raise an Appointment Clause challenge
before an ALJ to receive relief on that issue, contrasted with the agency’s litigation position and
therefore rendered the position unjustified.
However, at least one court rejected this exact argument in ruling that the Commissioner’s
forfeiture position was substantially justified. Dove-Ridgeway v. Saul, No. 19-00035, 2021 WL
1827206, at *6 n.61 (D. Del. May 7, 2021) (“The court disagrees because plaintiff’s assertion is
not a clearly settled legal principle articulated consistently by the courts, and plaintiff cites no cases
establishing it as such.”) (citations omitted).

Moreover, there was a reasonable basis for

disagreement with Fortin at the time, as Ruling 19-1p “still requires the claimant to have raised
the Appointments Clause challenge [at some point] during administrative proceedings, which
[Fortin] did not do.” See Linda B. v. Comm’r of Soc. Sec., 2020 WL 9936686, at *7 (N.D. Ga.,
Sept. 17, 2020).
Third, Fortin cites a letter from the Social Security Administration’s General Counsel,
Arthur J. Fried, NOSSCR Executive Director of the National Organization of Social Security
Claimants’ Representatives (NOSSCR), Nancy G. Shor. Fried Letter, ECF No. 47-1. In his letter,
Fried expressed his belief that “the administrative waiver rule helps to promote better service to
disability claimants” but that the rule “must, at times, be limited to avoid possible injustice.” Id.
at PageID.971. He indicated that he will “redouble [the agency’s] efforts to ensure that [its]
litigators” “do not rely exclusively on the [waiver] rule, without a substantive response to the
particular challenges raised by the plaintiffs.” Ibid. Fortin argues that the Commissioner violated
this policy when the agency exclusively opposed Fortin’s Appointments Clause argument by
raising a forfeiture argument. However, Fortin does not cite any authority indicating that this letter
had been formalized as an official agency policy, as opposed to an aspirational goal. Nor has he
- 14 -

cited any authority indicating that the violation of an informal policy alone could strip a contrary
position of its reasonable basis in law and fact, particularly where that contrary position has been
approved widely by various federal courts.
G.
Finally, Fortin argues that the Commissioner ignored published decisions that ruled against
the agency on this exact issue. See Byrd v. Saul, 469 F.Supp.3d 351 (E.D. Pa. 2020) (finding a
lack of substantial justification with respect to agency’s litigation position in light of the Supreme
Court’s holding in Sims); Armstrong v. Saul, 465 F.Supp.3d 486 (E.D. Pa. 2020) (finding a lack of
substantial justification with respect to SSA’s pre-litigation position because there was no
exhaustion prerequisite for judicial review in Social Security cases, and the fact that the agency
had no litigation position because the plaintiff did not raise the issue did not constitute substantial
justification); Howard v. Saul, No. 19-2262, 2020 WL 3288186 (E.D. Pa. Jun. 18, 2020) (same).
However, as mentioned above, the agency has cited a numerous published and unpublished
decisions supporting its substantial justification argument from various district courts, one of
which is from a court in this circuit. Rager, 2021 WL 374477, at *2 (W.D. Ky. Feb. 3, 2021);
Rich, 477 F. Supp. 3d at 393-98 (E.D. Pa. 2020); Hines, 2020 WL 3396801, at *3 (D.N.J. June 18,
2020).
It appears that Fortin cited the only three cases in which courts found the Commissioner’s
position not substantially justified. But there is much more support for the proposition that the
Commissioner’s position was substantially justified both before and during litigation. See, e.g.,
Lenz v. Saul, No. 19-489, 2021 WL 2515167, at *3 (E.D. Pa. Jun. 18, 2021) (noting a “solid
consensus” of decisions finding the Commissioner substantially justified in pursuing an
Appointments Clause argument until the Third Circuit foreclosed the argument); see also Leoone
- 15 -

v. Comm’r of Soc. Sec., No. 19-245, 2021 WL 3732914, at *2-3 (M.D. Fla. Aug. 24, 2021);
McCary-Banister v. Saul, No. 19-00782, 2021 WL 3494606, at *2-3 (W.D. Tex. Aug. 9, 2021);
Dewonkiee L.B. v. Comm’r of Soc. Sec., 2021 WL 3417842, at *3-4 (N.D.N.Y. Aug. 5, 2021);
Dove-Ridgeway, 2021 WL 1827206, at *4-6 (D. Del. May 7, 2021); Hoover v. Saul, 485 F. Supp.
3d 538, 543 (M.D. Pa. 2020); Flynn v. Saul, No. 19-0058, 2021 WL 2577146, at *4-5 (E.D. Pa.
Jun. 22, 2021); Hayes v. Saul, No. 17-5225, 2020 WL 5993504, at *2-5 (E.D. Pa. Oct. 9, 2020)
(Sánchez, C.J.); Diaz v. Comm’r of Soc. Sec., No. 18-5075, 2020 WL 3127941, at *2-3 (E.D. Pa.
Jun. 12, 2020) (Sánchez, C.J.); Brink v. Saul, No. 19-2350, 2020 WL 4674116, *304 (E.D. Pa.
Aug. 12, 2020); Marant v. Saul, No. 18-4832, 2020 WL 3402416, at *3-6 (E.D. Pa. June 19, 2020);
Lebron-Torres v. Comm’r of Soc. Sec., No. 18-1212, 2020 WL 3488424, at *3 (E.D. Pa. Jun. 26,
2020); McNeish v. Saul, No. 18-582, 2020 WL 4060322, at *3-6 (E.D. Pa. July 20, 2020); Holmes
v. Berryhill, No. 19-784, 2020 WL 2126787, at *2-3 (E.D. Pa. May 4, 2020); Cortese v. Comm’r
of Soc. Sec., No. 18-3437, 2020 WL 2745741, at *406 (E.D. Pa. May 27, 2020).
III.
The Commissioner raised a reasonable argument — that the plaintiff forfeited his
Appointment Clause argument by failing to raise it before the ALJ — that had been accepted by
many district courts across the nation as well as two circuit courts and one dissenting Sixth Circuit
judge. Although its position was ultimately rejected by the Sixth Circuit’s majority and the
Supreme Court, it nevertheless was substantially justified.
Accordingly, it is ORDERED that the plaintiff’s motion for attorney’s fees under the
Equal Access to Justice Act (ECF No. 48) is DENIED.
s/David M. Lawson
DAVID M. LAWSON
United States District Judge

Date: April 11, 2022
- 16 -