In 2018, the U.S. Supreme Court ruled that the appointment of Security and Exchange Commission (SEC) Administrative Law Judges (ALJs) was unconstitutional under the Appointments Clause of the U.S. Constitution. Lucia v. Securities and Exchange Commission, 138 S.Ct. 2044 (2018). Although Lucia did not address Social Security Administration (SSA) ALJs, SSA responded by “re-appointing” its ALJ corps on July 16, 2018. See the July 2018 and April 2019 editions of this newsletter for more on the implications of the decision on the constitutionality of SSA ALJ appointments, and the aftermath of Lucia, including Social Security Ruling (SSR) 19-2p.
Post Lucia, issues have continued to abound about whether challenges to the constitutionality of the ALJ appointment could be raised on appeal in U.S. District Court if the issue had not been raised at the administrative level. At least one Court of Appeals has now weighed in on that question. The Third Circuit has ruled that issue exhaustion is not required. It found that the characteristics of the SSA review process and the rights protected by the Appointments Clause favor resolution of these appointments claims. The decision reiterates the holding in the Sims v. Apfel, 530 U.S. 103 (2000), which held that claimants need not exhaust issues in the administrative process to obtain judicial review. See Cirko o/b/o Chirko v. Commissioner of Social Security, — F.3d —, 2020 WL 370832 (3d Cir. Jan. 23, 2020).
At least one court within the Second Circuit has issued a similar decision. See San Filippo v. Berryhill, 2020 WL 62039 (S.D.N.Y. Jan. 3, 2020). Advocates should consider raising Lucia challenge in claims decided before the 2018 reappointments.