United States District Court, N.D. Ohio, Western Division
JAMES G. CARR
INTERIM REPORT AND RECOMMENDATION OF MAGISTRATE
J. LIMBERT, UNITED STATES MAGISTRATE JUDGE
matter is before the undersigned on a motion to dismiss
Plaintiff's Appointments Clause Claim filed by Defendant
Nancy A. Berryhill, Acting Commissioner of Social Security
(“Defendant”) on November 30, 2018. ECF Dkt. #12.
On December 27, 2018, Plaintiff Vickie Gilbert
(“Plaintiff”) filed a response to the motion. ECF
Dkt. #13. On February 5, 2019, Defendant filed a reply brief.
ECF Dkt. #14.
following reasons, the undersigned RECOMMENDS that the Court
GRANT Defendant's motion to dismiss Plaintiff's
Appointments Clause Claim (ECF Dkt. #12) and DISMISS this
claim from Plaintiff's complaint.
FACTUAL AND PROCEDURAL HISTORY
September 5, 2018, Plaintiff, through counsel, filed a
complaint in this Court indicating that on or about July 21,
2015, she filed a claim for a period of disability and
disability insurance benefits (“DIB”) under Title
II of the Social Security Act. ECF Dkt. #1 at 1. She avers
that she appeared before an Administrative Law Judge
(“ALJ”) on January 12, 2018 for a hearing and the
ALJ issued a decision on May 30, 2018 denying her application
for DIB. Id. Plaintiff further avers that she filed
a timely request for review of the ALJ's decision before
the Appeals Council and the Appeals Council denied her
request on July 26, 2018, which made the ALJ's decision
the final decision of Defendant. Id.
advances two claims in her complaint. ECF Dkt. #1. The first
claim alleges that the ALJ who issued the May 30, 2018
decision in her social security case was not properly
appointed pursuant to the Appointments Clause of the United
States Constitution in Article 2, Section 2, Clause 2. ECF
Dkt. #12 at 2. She further alleges that substantial evidence
is lacking for the ALJ's decision that she was not
disabled under the Social Security Act. Id.
Defendant's instant motion to dismiss challenges only the
Appointments Clause claim of Plaintiff's complaint. ECF
Dkt. #12 at 10.
LAW AND ANALYSIS
Defendant's motion to dismiss, she contends that because
Plaintiff never presented her Appointments Clause claim to
the ALJ or the Appeals Council, she has forfeited the right
to bring such a claim before this Court. ECF Dkt. #12 at 2.
Plaintiff counters that issue exhaustion is not required in
Social Security cases and even if it were, it would have been
futile to raise this claim at the administrative level
because the Social Security Administration issued an
Emergency Message informing the ALJs that they could not
discuss or make findings related to Appointments Clause
challenges because such challenges were outside the scope of
adjudication. ECF Dkt. #13 at 5-8.
undersigned recommends that the Court GRANT Defendant's
motion to dismiss because Plaintiff has forfeited her right
to raise the Appointments Clause claim before this Court. In
Lucia v. Securities and Exchange Commission, the
United States Supreme Court (“USSC”) held that
the appointment of ALJs by the Securities and Exchange
Commission (“SEC”) to preside over adversarial
hearings violated the Appointments Clause of the United
States Constitution because the ALJs were appointed by SEC
staff members and not by the SEC itself, or by the President,
or a court of law. - - U.S. - -, 138 S.Ct. 2044, 2053, 201
L.Ed.2d 464 (2018). The USSC explained that the Appointments
Clause “lays out the permissible methods of appointing
‘Officers of the United States,' which is only by
the President, a court of law, or a head of
department.” Id. at 2049, 2051. The USSC held
that the appropriate remedy for this Appointments Clause
violation was a new hearing before an ALJ who was properly
appointed. Id. at 2055.
security claimants have sought to apply Lucia to
their cases in order to challenge the authority of social
security ALJs. In a case very similar to the one at bar,
United States Magistrate Judge Knepp of this District issued
a Report and Recommendation that the District Court find that
Wreede forfeited her Appointments Clause challenge to the ALJ
because she had failed to make this challenge during her
administrative proceedings. Wreede v. Comm'r of Soc.
Sec., No. 3:19cv164, 2019 WL 1324024, at *21-22 (N.D.
Ohio, Mar. 25, 2019)(Report and Recommendation adopted, with
no objections to Appointments Clause recommendation). Judge
Carr of this District adopted Magistrate Judge Knepp's
Report and Recommendation and affirmed the decision of the
Social Security Commissioner. Id.
Report and Recommendation, Magistrate Judge Knepp
acknowledged Lucia and its holding that the SEC ALJs
were “Officers of the United States” and
therefore subject to the Appointments Clause appointment by
only the President, courts of law, or heads of departments.
2019 WL 1324024, at *21. However, Magistrate Judge Knepp also
highlighted the holding in Lucia that “with
respect to Appointments Clause challenges, only ‘one
who makes a timely challenge' is entitled to
relief.” Id. at *21, quoting Lucia,
138 S.Ct. at 2055 (quoting Ryder v. U.S., 515 U.S.
177, 182-183 (1995). Magistrate Judge Knepp found that,
unlike the plaintiff in Lucia who had timely
presented an Appointments Clause challenge, Wreede did not
make such a challenge at the administrative level and she
therefore forfeited her Appointments Clause claim.
Wreede, 2019 WL 1324024, at *22. Magistrate Judge
Knepp thus recommended that the Court find that Wreede
forfeited the Appointments Clause challenge in her social
security case and she could not raise it before the Court.
Id. He cited to a host of cases holding that even if
Lucia's Appointments Clause holding applied to
ALJs for the Social Security Administration,
“plaintiffs forfeit the issue by failing to raise it
during administrative proceedings.” Id.,
citing e.g. Faulkner v. Comm'r of Soc. Sec., No.
1:17cv1197-STA-egb, 2018 WL 6059403, at *2 (W.D. Tenn. Nov.
19, 2018); Page v. Comm'r of Soc. Sec., 344
F.Supp.3d 902 (E.D. Mich. 2018); Davidson v. Comm'r
of Soc. Sec., No. 2:16cv102, 2018 WL 4680327, at *2
(M.D. Tenn. Sept. 28, 2018); Garrison v. Berryhill,
No. 1:17-302-FDW, 2018 WL 4924554, at *2 (W.D. N.C. Oct. 10,
2018); Stearns v. Berryhill, No. C17-2031-LTS, 2018
WL 4380984, at *5 (N.D. Iowa Sept. 14, 2018); Trejo v.
Berryhill, No. EDCV 17-0879-JPR, 2018 WL 3602380, at *3
n.3 (C.D. Cal. July 25, 2018).
cases in this Circuit have affirmed such a holding. In
Axley v. Commissioner of Social Security
Administration, No. 1:18-cv-1106-STA-cgc, 2019 WL 489998
(W.D. Tenn. Feb. 7, 2019), the United States District Court
for the Western District of Tennessee denied Axley's
motion to remand his social security case based upon the
ALJ's lack of authority under the Appointments Clause.
The Axley Court relied upon its prior holding in
Faulkner, 2018 WL 6059403 (W.D. Tenn. Nov. 19,
2018), in which it denied Faulkner's motion to remand his
case because he had failed to show good cause for not raising
the Appointments Clause claim at the administrative level.
2019 WL 489998, at *1. The Axley Court held that
Axley had failed to identify his Appointments Clause
challenge at any step in the social security administrative
process and he failed to show good cause for failing to do
so. Id. at *3. Similarly here, Plaintiff failed to
raise her Appointments Clause challenge concerning the ALJ at
the administrative level.
raised an additional argument in his case that Plaintiff also
raises in the instant case. He asserted that his failure to
raise the Appointments Clause claim before the ALJ should
have been excused because it would have been futile to do.
2019 WL 489998, at *2. Like Plaintiff in the instant case,
Axley cited to an Emergency Message issued by the Social
Security Administration to ALJs in January of 2018 directing
them to merely acknowledge Appointments Clause challenges
“[b]ecause SSA lacks the authority to finally decide
constitutional issues such as these.” Social Security
Administration EM-18003, Important Information Regarding
Possible Challenges to the Appointment of Administrative Law
Judges in SSA's Administrative Process Id. Axley
argued that had he raised this claim before the ALJ, the ALJ
would have merely noted the challenge and not have ruled on
it because of this emergency message. Id. The
Axley Court nevertheless found that “this
would at least have preserved the issue.” Id.
Similarly in the instant case, “Plaintiff failed to
make any noise regarding her Appointments Clause challenge
during the administrative proceedings.” Flack v.
Comm'r of Soc. Sec., No. 2:18-cv-501, 2018
WL 6011147, at *3 (S.D. Ohio Nov. 16, 2018)(since plaintiff
did not raise Appointments Clause challenge before the ALJ or
Appeals Council, ...