Justices to Resolve Circuit Split Over Administrative Judge Appointments

WASHINGTON (CN) — The Supreme Court agreed Monday to decide whether Social Security claimants challenging the appointment of administrative law judges must first bring those claims to the agency before taking their case to court.

At the heart of two consolidated cases is the U.S. Constitution’s appointments clause, which outlines four ways judges and other government officials are appointed: by the president with the advice and consent of the Senate, by the president alone, by the heads of departments and by the courts of law.

But U.S. Supreme Court precedent in the 2018 decision Lucia v. SEC – in which the justices ruled that Securities and Exchange Commission judges must be appointed rather than hired – as well as an executive order issued by Trump shortly after Lucia was handed down have complicated the process for naming administrative law judges and for challenging such appointments on constitutional grounds.

The high court agreed to tackle the issue Monday, announcing without comment that it will take up consolidated cases from the Eighth and 10^th Circuits asking whether two men who were denied Social Security benefits should have their cases reheard despite not challenging the appointment of their administrative law judges before going to federal court.

While the Supreme Court petitions filed by the plaintiffs, Willie Earl Carr and John J. Davis, are not available because Social Security cases are not filed with the court electronically for privacy reasons, a response brief from the federal government argues that the lower courts were correct in denying relief to Carr and Davis.

However, Jeffrey B. Wall, the Department of Justice’s acting solicitor general who represents Social Security Administration Commissioner Andrew Saul in the case, agreed that the Supreme Court should take up the case and settle a circuit split.

“Two courts of appeals…have held that a claimant for Social Security disability benefits forfeits his appointments clause challenge to the appointment of an ALJ by failing to raise the challenge before the agency,” Wall wrote. “In contrast, two other courts of appeals…have held that a claimant for Social Security disability benefits may raise an appointments clause challenge to the appointment of the ALJ in district court even if he failed to raise the challenge before the agency.”

Wall argued the circuit split is unlikely to resolve itself without the nation’s top court stepping in.

“The question presented also affects a significant number of cases. As already noted, SSA receives millions of disability claims, conducts hundreds of thousands of ALJ hearings, and pays out hundreds of billions of dollars in disability benefits and supplemental security income payments each year,” the brief states, adding that hundreds of lawsuits seeking new Social Security hearings are filed each year.

In an email, the plaintiffs’ attorney Kannon K. Shanmugam with Paul, Weiss, Rifkind, Wharton & Garrison said he had no comment on the case being accepted by the high court.

A date has not yet been set for the Supreme Court hearing.  

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