Davidson v. Social Security Administration

Filing 21

ORDER ADOPTING REPORT AND RECOMMENDATIONS denying 13 Motion for Judgment on the Record; adopting Report and Recommendations re 16 Report and Recommendation. Signed by Chief Judge Waverly D. Crenshaw, Jr on 9/28/2018. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(am)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
COOKEVILLE DIVISION
KIM MARIE DAVIDSON,
Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

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No. 2:16-cv-00102
CHIEF JUDGE CRENSHAW

MEMORANDUM OPINION AND ORDER
Before the Court is a Report and Recommendation from the Magistrate Judge,
recommending that the final decision of the Commissioner be affirmed. (Doc. No. 16.) Plaintiff
filed a timely objection, arguing that the appointment of the Administrative Law Judge for the
Social Security Administration that heard Plaintiff’s case violated the appointments clause of the
United States Constitution. (Doc. No. 17.) For the following reasons, the objection is overruled,
and the Report and Recommendation is adopted.
Article II, Section II, clause 2 of the Constitution “lays out the permissible methods of
appointing ‘Officers of the United States,’ a class of government officials distinct from mere
employees.” Lucia v. S.E.C., 138 S. Ct. 2044, 2049 (2018) (citing reference omitted). Officers of
the United States “must be appointed by the President, a ‘Court[ ] of Law,’ or a ‘Head[ ] of
Department[ ].” Jones Bros., Inc. v. Sec’y of Labor, 898 F.3d 669, 676 (6th Cir. 2018) (citing U.S.
Const. art. II, § 2, cl. 2). If someone “makes a timely challenge to the constitutional validity of the
appointment of an officer who adjudicates his case,” that person is entitled to a new administrative

“‘hearing before a properly appointed’ official.” Id. at 2055 (quoting Ryder v. United States, 515
U.S. 177, 182-83 (1995)).
The issue before the Court is very narrow because the Commissioner conceded, for the
purposes of this case, that the appointment of Social Security Administrative Law Judges is subject
to the appointments clause and that the Administrative Law Judge that decided Plaintiff’s claim
was not properly appointed. (Doc. No. 20 at 2 n.1). The Commissioner instead argues that
Plaintiff’s challenge to the Administrative Law Judge’s appointment was not timely because it was
not raised at the administrative level. (Doc. No. 20.) The question of whether a plaintiff must raise
a constitutional challenge at the administrative level in order to be timely turns on whether the
challenge is an “as applied” or “facial” challenge. Jones Bros., 898 F.3d at 676. Courts “generally
expect parties . . . to raise their as-applied or constitutional-avoidance challenges” at the
administrative level and “hold them responsible for failing to do so.” Id.
A determination of whether a statute is “as applied” or “facial” hinges on the language of
the statute allowing for the appointment of the Administrative Law Judges. Id. at 676. For example,
the Mine Act gives the power to appoint Administrative Law Judges to the “[t]he Commission . .
. as it deems necessary to carry out the functions of the Commission.” Id. (citing 30 U.S.C. §
823(b)(2)). This could be implemented in a constitutional manner, for example, if the Commission
acted directly in appointing the Administrative Law Judge. Id. (citing Lucia, 138 S. Ct. at 2050).
Therefore, the Sixth Circuit held it was an “as applied” challenge. Id. at 677. If, instead, the statute
required the Chief Administrative Law Judge to appoint Administrative Law Judges, which was
the practice of the Mining Commission, there would be no constitutional way to implement the
statute and the challenge would be facial. Id.

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Here, the Commissioner of Social Security is permitted to “assign duties, and delegate, or
authorize successive redelgations of, authority to act and to render decisions, to such officers and
employees of the Administration as the Commissioner may find necessary.” 42 U.S.C. § 902(a)(7).
The Social Security Administration may “appoint as many administrative law judges as are
necessary for proceedings required to be conducted . . . .” 5 U.S.C. § 3105. The Social Security
Administration has not published a regulation or rule that governs how it appoints judges. Lucia,
138 S. Ct. at 2058 (Thomas, J., concurring).
These statutes certainly could be applied in a constitutional manner if the Administrative
Law Judges were appointed by a “Head of Department.” Jones Bros., Inc., 898 F.3d at 676 (citing
Lucia, 138 S. Ct. at 2050). Instead, the Commissioner conceded for the purposes of this case that
the appointment of the Administrative Law Judge that decided Plaintiff’s claim violated the
appointments clause. Because Plaintiff did not raise her as applied constitutional challenge at the
administrative level or argue that she had good cause for her failure to do so, Plaintiff has waived
her challenge to the appointment of her Administrative Law Judge.
Accordingly, Plaintiff’s Objection (Doc. No. 17) is OVERRULED. The Report and
Recommendation (Doc. No. 16) is ADOPTED. Plaintiff’s Motion for Judgment on the Record
(Doc. No. 13) is DENIED, and the final decision of the Commissioner is AFFIRMED. The Clerk
shall enter judgment in accordance with Federal Rule of Civil Procedure 58.
IT IS SO ORDERED.

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WAVERLY D. CRENSHAW, JR.
CHIEF UNITED STATES DISTRICT JUDGE

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