Faulkner v. Berryhill
Filing
25
ORDER DISMISSING ORDER TO SHOW CAUSE WHY THIS MATTER SHOULD NOT BE REMANDED. Signed by Chief Judge S. Thomas Anderson on 11/19/18. (mbm)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
DOUGLAS FAULKNER,
Plaintiff,
vs.
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
)
)
)
)
)
)
)
)
)
)
Case No: 1:17-cv-01197-STA-egb
ORDER DISMISSING ORDER TO SHOW CAUSE
WHY THIS MATTER SHOULD NOT BE REMANDED
Plaintiff Douglas Faulkner filed this action to obtain judicial review of Defendant
Commissioner’s final decision denying his application for disability benefits under the Social
Security Act (“Act”). On July 31, 2018, Plaintiff filed a “notice of new law.” (ECF No. 18.)
The notice contends that the Administrative Law Judge (“ALJ”) in this matter was not appointed
pursuant to the Appointments Clause of the United States Constitution and that the decision
denying benefits must be vacated and the case remanded for a new hearing before a different
ALJ in light of Lucia v. SEC, 138 S. Ct. 2044 (2018).
The Court ordered the Commissioner to respond to Plaintiff’s notice, addressing Lucia
and the Sixth Circuit’s holding in Jones Bros., Inc. v. Sec’y of Labor, 2018 WL 3629059 (6th
Cir. July 31, 2018). (ECF No. 19.) The Commissioner has filed her response and argues that
Plaintiff has forfeited his Appointments Clause argument because he did not raise that argument
at the administrative level. (ECF No. 24.) The Court finds the Commissioner’s response to be
persuasive for the reasons set forth below. Accordingly, the Order to Show Cause is hereby
DISMISSED. The Court will address the merits of Plaintiff’s appeal of the denial of his
application for disability benefits in a separate order.
On June 21, 2018, the United States Supreme Court issued its decision in Lucia v. SEC,
holding that ALJs for the Securities and Exchange Commission are “Officers of the United
States,” and, therefore, are subject to the Constitution’s Appointments Clause, Article II, §2,
Clause 2. 138 S. Ct. at 2055. “Such officers” must be appointed by “the President alone…the
Courts of Law, or…Heads of Departments.” Id. The Court found that “‘one who makes a timely
challenge to the constitutional validity of the appointment of an officer who adjudicates his case
is entitled to relief.” Id. at 2055 (quoting Ryder v. United States, 515 U.S. 177, 182-83 (1995)).
The Lucia Court determined that the plaintiff had “made just such a timely challenge: He
contested the validity of [presiding ALJ’s] appointment before the Commission and continued
pressing that claim in the Court of Appeals and this Court.” Id.
Although Lucia concerned ALJs for the Securities and Exchange Commission, in the
present case, Plaintiff contends that the same reasoning applies to ALJs who decide Social
Security disability claims. However, it is undisputed that at no point in the administrative
process did Plaintiff ever present the argument that the Agency’s ALJ who presided over his case
was not constitutionally appointed under the Appointments Clause. Instead, Plaintiff did not
raise the issue until he filed his notice of new law in this Court on July 31, 2018. The question
now before the Court is whether Plaintiff’s request for remand based on an Appointments Clause
claim should be denied because the issue was never raised during the administrative process or if
Plaintiff’s failure to exhaust his administrative remedies should be forfeited.
Pre Lucia, Courts that considered Appointments Clause challenges found that a plaintiff’s
failure to assert a challenge to the ALJ’s appointment during the administrative proceedings
2
forfeited his Appointments Clause claim. See, e.g., United States v. L.A. Tucker Truck Lines,
Inc., 344 U.S. 33, 38 (1952) (holding that parties may not wait until they are in court to raise a
statutory “defect in the . . . appointment” of the official who issued the agency’s initial decision);
Elgin v. Dep’t of Treasury, 567 U.S. 1, 23 (2012) (finding that a plaintiff is required to exhaust
his constitutional claim to administrative agency before seeking review in federal court); NLRB
v. RELCO Locomotives, Inc., 734 F.3d 764, 798 (8th Cir. 2013) (holding that the plaintiff could
not seek review of an Appointments Clause challenge to NLRB members “because it did not
raise the issue before the Board”); Intercollegiate Broad. Sys. v. Copyright Royalty Bd., 574 F.3d
748, 755-56 (D.C. Cir. 2009) (per curiam) (declining to address an Appointments Clause
challenge to the Copyright Royalty Board members because it was “untimely” and there was no
reason “to depart from [the Court’s] normal forfeiture rule”); In re DBC, 545 F.3d 1373, 1378-81
(Fed. Cir. 2008) (refusing to entertain an untimely Appointments Clause challenge to the
appointment of a Patent Office administrative judge).
Courts have reasoned that a constitutional challenge under the Appointments Clause is
nonjurisdictional, and, thus, a party may forfeit his Appointments Clause claim by failing to raise
it at the administrative level. See RELCO Locomotives, 734 F.3d at 795 (“We see no reason to
depart from [Freytag v. Comm’r, 501 U.S. 868 (1991]’s general rule that appointments clause
challenges are nonjurisdictional.”);1 GGNSC Springfield LLC v. N.L.R.B., 721 F.3d 403, 406 (6th
Cir. 2013) (“Errors regarding the appointments of officers under Article II are
‘nonjurisdictional.’”).
Although the Supreme Court in Freytag exercised its discretion to review an Appointments
Clause challenge that had not been raised before the Tax Court, it stressed that this was a “rare
case” requiring such review. 501 U.S. at 879.
1
3
Post Lucia, Courts that have considered Appointments Clause challenges under the Social
Security Act have found those challenges forfeited if not raised at the administrative level. See,
e.g., Page v. Comm’r of Soc. Sec’y, 2018 WL 5668850 (E.D. Mich. Oct. 31, 2018) (denying the
plaintiff’s motion to amend her complaint to raise a post Lucia Appointments Clause claim on
the ground that she did not raise it at the administrative level, and, thus, the claim was forfeited);
Davidson v. Comm’r of Soc. Sec’y, 2018 WL 4680327 at *2 (M.D. Tenn. Sept. 28, 2018)
(“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.”); accord Salmeron v. Berryhill, 2018 WL
4998107 at *3 n. 5 (C.D. Cal. Oct. 15, 2018) (“To the extent Lucia applies to Social Security
ALJs, Plaintiff has forfeited the issue by failing to raise it during his administrative
proceedings.”); Garrison v. Berryhill, 2018 WL 4924554 (W.D. N.C. Oct. 10, 2018) (same);
Stearns v. Berryhill, 2018 WL 4380984 (N.D. Iowa Sept. 14, 2018) (same); Karen S. v. Comm'r
of Soc. Sec., 2018 WL 4053327 (E.D. Wash. Aug. 24, 2018) (same).
The Commissioner was also instructed to brief the Court on the issue of whether the post
Lucia holding in Jones Bros., Inc. v. Sec’y of Labor, 898 F.3d 669, 677 (6th Cir. 2018) (finding
the Appointments Clause challenge forfeited but excusing forfeiture based on the facts of that
case), allows the Court to find that an Appointments Clause challenge in this case may still be
considered even though it was not raised at the administrative level.
As noted by the
Commissioner, in Jones Brothers the Sixth Circuit acknowledged that as-applied Appointments
Clause challenges are nonjurisdictional and are forfeited if not raised timely.2 Id. at 676-77.
2
In a facial Appointments Clause challenge, the plaintiff argues that the statute providing for
appointment of officers is unconstitutional. An as-applied challenge asserts that the statute
4
However, the Court determined that, although the plaintiff had failed to “press” an Appointments
Clause argument before the agency, the plaintiff had identified the issue and the existence of a
split of authorities to the Mine Commission at the administrative level. Id. at 673, 678. Given
the possible “confusion” created by the administrative review scheme of the Mine Act, the Sixth
Circuit held that the plaintiff’s approach – identifying the Appointments Clause issue but not
pressing the argument – was “a reasonable statement from a petitioner who wishes to alert the
Commission of a constitutional issue but is unsure (quite understandably) just what the
Commission can do about it.” Id. at 678. That is, the plaintiff’s reasonable uncertainty, together
with its acknowledgment of the constitutional issue at the administrative level, provided grounds
for excusing the forfeiture. Id. at 678.
Thus, the Sixth Circuit vacated the Commission’s
decision and remanded the case to the administrative level “[b]ecause the administrative law
judge was an inferior officer of the United States and because she was not appointed by the
President, a court of law, or the head of a department, as the Constitution demands.” Id. at 672.
In this case, Plaintiff did nothing to identify his Appointments Clause challenge at any
point in the administrative proceedings and has not shown good cause for his failure to do so.
See Page, 2018 WL 5668850 at *3 (“The facts of this case do not warrant making an exception
to the general rule that the failure to bring as-applied claims at the administrative level results in
waiver.”)
As explained in Page, “[a]lthough the administrative process in Jones Brothers
predates the current case, the Jones Brothers plaintiff noted a ‘circuit split’ on the issue of the
appointment of ALJs while its case was still at the administrative level. In contrast, current
Plaintiff failed to raise, much less develop the Appointments Clause issue at the administrative
level although the split in authority occurred long before the application for benefits was
providing for appointment is consistent with the Appointments Clause but has not been applied
in a manner consistent with the Constitution. Jones Brothers, 898 F.3d at 676-77.
5
considered by the Appeals Council.” Id. As in Page, “[b]ecause Plaintiff failed to make an
argument or even note a split of authority pertaining to the appointment of the ALJ at any point
in the administrative procedure, the Jones Brothers holding cannot be extended to the facts of the
present case.”3 Id. (quoting Davidson, 2018 WL 4680327 at *1 (“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.’” (citing Jones Brothers)). Davidson
emphasized that a Social Security plaintiff must either raise his Appointments Clause claim at
the administrative level or show good cause for failing to do so in order not to forfeit that claim
before the district court. 2018 WL 4680327 at *2.
Plaintiff’s failure to raise his Appointments Clause challenge at any point in the
administrative process or show good cause why he did not do so forfeits his claim. Therefore,
the order for the Commissioner to show cause why this matter should not be remanded for a new
hearing in front of a different ALJ is DISMISSED.
IT IS SO ORDERED.
s/ S. Thomas Anderson
S. THOMAS ANDERSON
CHIEF UNITED STATES DISTRICT JUDGE
Date: November 19, 2018.
3
Page also noted that, as of the date of that decision, “courts that have considered the issue have
unanimously rejected attacks on the validity of the ALJ’s appointment under Lucia brought
under 42 U.S.C. 405(g) where the claimant failed to make a constitutional challenge at the
administrative level.” 2018 WL 5668850 at *3.
6
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?