United States District Court, W.D. Texas, San Antonio Division
ELIZABETH S. ("BETSY") CHESTNEY UNITED STATES
the Court is Defendant's Opposed Motion to Remand [#14].
By his motion, the Commissioner requests the Court remand
this case to allow the Commissioner to conduct further
proceedings pursuant to sentence four of 42 U.S.C. §
405(g). The parties agree that Plaintiff timely challenged
the legal authority of the Administrative Law Judge
(“ALJ”) assigned to his case under the Supreme
Court's recent decision in Lucia v. SEC, __
U.S.__, 138 S.Ct. 2044 (2018), arguing the ALJ was not
properly appointed under the U.S. Constitution's
Appointments Clause. For the reasons that follow, the Court
should grant the motion.
Appointments Clause of the Constitution lays out the
permissible methods of appointing ‘Officers of the
United States,' a class of government officials distinct
from mere employees.” Lucia, 138 S.Ct. at 2049
(citing Art. II, § 2, cl. 2). In Lucia, the
Supreme Court held that ALJs are “Officers of the
United States” within the meaning of the Appointments
Clause. Id. at 2055. The Supreme Court has
previously held that “one who makes a timely challenge
to the constitutional validity of the appointment of an
officer who adjudicates his case” is entitled to relief
in the form of a new “hearing before a properly
appointed” official. Ryder v. United States,
515 U.S. 177, 182-183 (1995). In Lucia, the Supreme
Court clarified that the new official cannot be the
improperly appointed official, even if the official has since
obtained a constitutional appointment. 138 S.Ct. at 2055.
Accordingly, “[t]o cure the constitutional error,
another ALJ (or the [executive agency] itself) must hold the
new hearing to which [the claimant] is entitled.”
Social Security Administration issued a recent ruling on the
effect of the Lucia decision on cases pending at the
Appeals Council in which the claimant has raised a timely
challenge to the constitutionality of the appointment of an
ALJ. Social Security Ruling (“SSR”) 19-1p, 2019
WL 1324866 (S.S.A. Mar. 15, 2019). The Administration
directed the Appeals Council, upon remand, to “conduct
a new and independent review of the claims file and either
remand the case to an ALJ other than the ALJ who issued the
decision under review, or issue its own new decision about
the claim covering the period before the date of the
ALJ's decision.” Id. at *3.
Commissioner believes remand is necessary under
Lucia and Social Security Ruling (SSR) 19-1p.
Although Plaintiff agrees with the Commissioner that remand
is required, he argues that upon remand the Appeals Council
must remand the case to an ALJ and may not issue its own new
decision, despite the directive in SSR 19-1p. Plaintiff asks
the Court to allow further briefing on the question of the
proper remedy for a Lucia challenge and to hold oral
argument on this issue.
briefing is unnecessary and premature. Plaintiff is
requesting that this Court definitively rule that the Appeals
Council must remand to an ALJ and may not decide his case
itself. Plaintiff has cited no authority in support of this
position. And his request is premature: the case has not yet
been remanded to the Appeals Council, which may remand the
case to an ALJ and moot the issue Plaintiff wants the Court
Lucia itself supports the Commissioner's
position. In Lucia, the Supreme Court stated that
the cure for the constitutional error of an improper
appointment is remand so that a new ALJ or the
executive agency (here the Social Security
Administration) itself may hold a new hearing. 138 S.Ct. at
2055 (this Court's own emphasis). The Social Security
Administration interpreted this directive as permitting
either a new ALJ hearing or a decision by the Appeals
Council, which is a branch of the Administration. SSR 19-1p,
2019 WL 1324866, at *3-4.
based on the parties' agreement that Plaintiff timely
challenged the appointment of the ALJ under Lucia
and that remand is proper in this case, the Court should
remand to the Appeals Council. Nothing in this opinion should
be read as precluding Plaintiff from raising his argument
that the Appeals Council is prohibited from deciding the case
itself on remand if the issue becomes ripe because the
Appeals Council chooses not to assign a new ALJ to this case.
IS THEREFORE ORDERED that Defendant's Opposed
Motion to Remand [#14] is GRANTED and this
case is reversed and remanded pursuant to sentence four of 42
U.S.C. § 405(g) for further administrative proceedings.
 Andrew Saul is now the Commissioner of
Social Security and is automatically substituted as a party
pursuant to Fed.R.Civ.P. 25(d). See also 42 U.S.C.
§ 405(g) (action survives regardless of any change in
the person occupying ...