Alexis Nguyen | Are Decisions Rendered by Improperly-Appointed Administrative Law Judges “Tainted”, Even After The Judges’ Ratification?

Background

In March 2018, Administrative Law Judge (ALJ) Mark Solomon conducted a hearing regarding plaintiff Mollie Marie Flinton’s Social Security application. He had not been properly appointed at this time in compliance with the Constitution’s Appointment Clause, yet still issued a decision denying her benefits. After the U.S. District Court for the Southern District of New York remanded Flinton’s case to the Social Security Administration (SSA) for a near hearing in 2020, Flinton again appeared before ALJ Solomon for a hearing in August 2021. This time, however, ALJ Solomon had been ratified by the Commissioner of Social Security, now in compliance with the Constitution’s Appointment Clause. Pertinent to the case is the June 2018 Supreme Court decision in Lucia v. SEC, where the court held that ALJs of the SEC are “Officers of the United States” within the purview of the Constitution’s Appointments Clause. Since they were “inferior officers,” only “the President, a court of law, or a head of department” could properly appoint them to their positions.

In the case of Lucia, the SEC ALJ that had decided the case had done so “without the kind of appointment the Clause requires,” so the Court remanded plaintiff’s case to be heard by a different, constitutionally appointed adjudicator. Following this, in March 2019 (shortly after Flinton commenced a civil action to seek review of the Commissioner’s final decision), the SSA issued guidance to the Appeals Council that “upon a ‘timely-raised Appointments Clause challenge,’ it should vacate ALJ decisions that predate ratification and generally ‘remand the case to an ALJ other than the ALJ who issued the prior decision.’” Following a series of actions where Flinton did not raise an Appointments Clause issue, Flinton initiated the present civil action in October 2022, with one of her claims asserting that the SSA had violated the Appointments Clause by assigning her case to ALJ Solomon on remand since she was “entitled to a new hearing before a different ALJ.”

Issue

Whether a decision re-heard by a newly ratified administrative law judge (ALJ) that was originally heard by the same ALJ at a time they were improperly appointed considered a “tainted” decision?

The Split

The Second Circuit split from the Eleventh Circuit, which found that a merits-based vacatur eliminates the Appointments Clause violation and the requirement for remedy Lucia called for. It joins the Fourth Circuit in holding that any post-ratification decision by the same ALJ is tainted by the same ALJ’s decision pre-ratification. It distinguishes itself slightly from the Ninth Circuit by adopting a bright-line rule instead of assessing the extent of the taintedness.

Second and Fourth Circuits

The Second Circuit holds that Flinton suffered an unalleviated Appointments Clause violation and must be afforded a new hearing before a different ALJ. The Fourth Circuit has held that a Social Security claimant is “entitled to an independent decision issued by a different ALJ if a timely challenged ALJ decision is ‘tainted’ by a pre-ratification ALJ decision.’” It examined this question in Brooks v. Kijakazi, finding that a post-ratification decision was constitutionally defective and rejecting the argument that a “merits-based” vacatur of an ALJ’s earlier decision obviated the need for the Lucia remedy.

Ninth Circuit

The Ninth Circuit has held similar reasoning to the Second and Fourth Circuits in terms of what a Social Security claimant is entitled to if putting forth a timely challenge against an ALJ decision. It examined this question in Cody v. Kijakazi, where they determined that requiring a remand and hearing before a new ALJ supported the aims identified in Lucia.

Eleventh Circuit

The Eleventh Circuit has taken a completely different approach than the Second, Fourth and Ninth Circuits. It addresses the issue in Raper v. Comm’r of Soc. Sec., holding that when there is a merits-based vacatur of an ALJ’s decision as opposed to one based solely on an improper appointment, and the case is remanded to the same ALJ now properly appointed, there is no live Appointments Clause violation requiring remand to a new ALJ.

Looking Forward

The Second Circuit’s decision in this case sets a likely precedent as to the relevance and importance of the Appointments Clause in ALJ hearings. It allows more leeway for plaintiffs seeking to raise Social Security challenges. The Second Circuit’s decision also strengthens Lucia as a precedent for similar Appointment Clause challenges, and reinforces the notion that a decision heard by an ALJ before they were properly ratified is considered a “tainted” decision.

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