BRIAN CODY V. KILOLO KIJAKAZI, No. 21-35553 (9th Cir. 2022)
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A Social Security Administration ALJ, appointed by agency staff rather than by the Commissioner as required, reviewed and denied claimant’s initial claims. Without challenging the ALJ’s appointment, the claimant appealed to the district court and prevailed in part. The district court vacated the 2017 ALJ decision and ordered a new hearing because the ALJ failed to properly consider certain evidence. The case returned to the same ALJ, who by then had been properly ratified by the Acting Commissioner. The ALJ again denied benefits, and claimant appealed to the district court, raising the issue of an Appointments Clause violation. The district court affirmed the ALJ decision and denied the Appointments Clause claim because the 2017 decision had been vacated and the ALJ was properly appointed when she issued the 2019 decision.
Because the ALJ’s decision was tainted by a prior Appointments Clause violation, the Ninth Circuit vacated the district court’s decision affirming the Commissioner of Social Security’s denial of claimant’s application for benefits under the Social Security Act and remanded with instructions to the Commissioner to assign the case to a different, validly appointed ALJ to rehear and adjudicate claimant’s case de novo. The panel held that under Lucia, the claimant was entitled to a new hearing before a different ALJ. The panel concluded that claimants are entitled to an independent decision issued by a different ALJ if a timely challenged ALJ decision is tainted by a pre-ratification ALJ decision.
Court Description: Appointments Clause / Social Security Because the administrative law judge’s decision was tainted by a prior Appointments Clause violation, the panel vacated the district court’s decision affirming the Commissioner of Social Security’s denial of claimant’s application for benefits under the Social Security Act, and remanded with instructions to the Commissioner to assign the case to a different, validly appointed ALJ to rehear and adjudicate claimant’s case de novo. A Social Security Administration ALJ, appointed by agency staff rather than by the Commissioner as required, reviewed and denied claimant’s initial claims. Without challenging the ALJ’s appointment, the claimant appealed to the district court and prevailed in part. The district court vacated the 2017 ALJ decision and ordered a new hearing because the ALJ failed to properly consider certain evidence. The case returned to the same ALJ, who by then had been properly ratified by the Acting Commissioner. In a 2019 decision, the ALJ again denied benefits, and claimant appealed to the district court, raising the issue of an Appointments Clause violation. The district court affirmed the ALJ decision and denied the Appointments Clause claim because the 2017 decision had been vacated and the ALJ was properly appointed when she issued the 2019 decision. In Lucia v. SEC, 138 S. Ct. 2044, 2049, 2052–55 (2018), the Supreme Court held that Securities & Exchange CODY V. KIJAKAZI 3 Commission ALJs were not mere government employees, but rather “Officers” of the United States, and as a result, their appointments must follow the Appointments Clause. The panel held that under Lucia, the claimant was entitled to a new hearing before a different ALJ. At the time the ALJ issued the 2017 decision, she was not a properly appointed Officer of the United States under the Appointments Clause. By the time the same ALJ reheard and issued the 2019 decision, the Acting Commissioner had ratified the ALJ’s appointment. The panel held that because the same ALJ issued both decisions, the claimant did not receive what Lucia required: an adjudication untainted by an Appointments Clause violation. The panel rejected SSA’s argument that no new ALJ decision was required because the claimant failed to timely raise a challenge to the pre-ratification 2017 decision. Claimant’s challenge was not to the 2017 decision, but to the 2019 decision, which was tainted by the 2017 decision. The panel concluded that claimants are entitled to an independent decision issued by a different ALJ if a timely challenged ALJ decision is tainted by a pre-ratification ALJ decision.
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