Sweat v. Berryhill

Filing 24

ORDER denying Pltf's 12 MOTION to Remand; and pursuant to this ruling and the Order issued 9/11/2018, Commissioner has 45 days in which to respond to Pltf's Motion for Summary Judgment (Doc. no. 10 ). (Government SS Motion for Summary Judgment due by 6/8/2019.) Signed by Senior Judge Graham Mullen on 4/24/2019. (ejb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL ACTION NO. 1:18-CV-00042-GCM
REBECCA DAWN SWEAT,
Plaintiffs,
v.
NANCY A. BERRYHILL,
Defendants.

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ORDER

THIS MATTER COMES before this Court on Plaintiff’s Motion to Remand (Doc. No.
12). The Commissioner responded to the Motion (Doc. No. 17) to which Plaintiff replied (Doc.
No. 22). As such, this matter is now ripe for disposition.
I.

DISCUSSION
Plaintiff seeks a new hearing in front of a new Administrative Law Judge (“ALJ”) because

the ALJ that presided over her case was not properly appointed under the Appointments Clause of
the United States Constitution. The Supreme Court in Lucia, held that ALJs of the Security and
Exchange Commission are “Officers of the United States” and thus are subject to the
Appointments Clause of the Constitution. Lucia v. SEC, 138 S. Ct. 2044, 2055 (2018).
In order to invoke the rule from Lucia, a party must make a “timely challenge.” Id. (“one
who makes a timely challenge to the constitutional validity of the appointment of an officer who
adjudicates his case is entitled to relief.”) (internal citations and quotations omitted). In Lucia, the
plaintiff made an Appointments Clause challenge before the Commission. Id. In this case, Plaintiff
failed to make such a challenge. Thus, even if Lucia applied to Social Security ALJs as argued by
Plaintiff, Plaintiff forfeited that argument by not raising it before the Commission. This holding is

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line with several other opinions from this District. See Whiteside v. Berryhill, 1:18-cv-00176FDW, 2019 WL 1639936 (W.D.N.C. Apr. 16, 2019) (Whitney, J.) (rejecting Lucia argument
because Plaintiff forfeited the argument by failing to raise it in front of the Commission); Jackson
v. Berryhill, 1:18-cv-00003-RJC, 2019 WL 1332377 (W.D.N.C. Mar. 25, 2019) (Conrad, J.)
(same); Britt v. Berryhill, No. 1:18-cv-00030-FDW, 2018 WL 6268211, at *2 (W.D.N.C. Nov. 30,
2018) (Whitney, J.) (same); Garrison v. Berryhill, No. 1:17-cv-00302-FDW, 2018 WL 4924554,
at *2 (W.D.N.C. Oct. 10, 2018) (Whitney, J.) (same). The Court finds these cases persuasive.
Therefore, Plaintiff’s Motion to Remand is DENIED as Plaintiff forfeited the argument by failing
to raise it before the Commission.
II.

CONCLUSION
For the aforementioned reasons, Plaintiff’s Motion to Remand (Doc. No. 12) is DENIED.

Pursuant to this ruling and the Order issued on September 11, 2018, Commissioner will have
forty-five (45) days in which to respond to Plaintiff’s Motion for Summary Judgment (Doc. No.
10).

SO ORDERED.

Signed: April 24, 2019

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