Tom Krause, NOSSCR Litigation Director

The Supreme Court has been asked to resolve a critical circuit split regarding the appropriate remedy for Appointments Clause violations in disability cases. The petition for writ of certiorari in Raper v. Commissioner of Social Security, 89 F.4th 1261 (11th Cir. 2024), filed on August 22, 2024, challenges the Eleventh Circuit’s decision to allow the same Administrative Law Judge (ALJ)—originally unconstitutionally appointed—to rehear a case after receiving a proper constitutional appointment.

This case poses a pivotal question: Is a remand to a different ALJ required when a decision by an unconstitutionally appointed ALJ is vacated and remanded, even if the ALJ later receives a valid appointment?

The Case at Hand

Marcus Raper, the petitioner, initially had his Social Security disability claim denied in 2017 by ALJ Kevin J. Detherage, who lacked a constitutionally valid appointment at the time. Following the Supreme Court’s decision in Lucia v. SEC, 585 U.S. 237 (2018), which established that unconstitutionally appointed officials must be replaced upon remand, the SSA ratified ALJ Detherage’s appointment in 2018. Nonetheless, when Raper’s case was remanded on the merits in 2019, it returned to the same ALJ, who again denied the claim.

The Eleventh Circuit upheld this second denial, reasoning that vacating the initial decision on the merits removed any taint from the prior unconstitutional appointment. This reasoning directly conflicts with rulings from the Fourth and Ninth Circuits.

A Circuit Split Emerges

The Supreme Court is more likely to grant a petition for certiorari where there is a split in the Circuits, as there is here. The Eleventh Circuit’s decision expressly departs from those of the Fourth and Ninth Circuits:

Fourth Circuit: In Brooks v. Kijakazi, 60 F.4th 735 (4th Cir. 2023), the court held that the taint of an unconstitutional appointment persists, and reassignment to a different ALJ is required to ensure a fair hearing.

Ninth Circuit: Similarly, in Cody v. Kijakazi, 48 F.4th 956 (9th Cir. 2022), the court mandated reassignment to a new ALJ, emphasizing that the structural protections of the Appointments Clause demand remedies with “bite.”

The Eleventh Circuit, in contrast, determined that if the initial decision is vacated for merits-related reasons, the original ALJ—now constitutionally appointed—can preside over the rehearing.

Implications for Appointments Clause Remedies

This case raises significant questions about the balance between procedural fairness and administrative efficiency. The petitioner argues that the Eleventh Circuit’s decision undermines the structural protections of the Appointments Clause and conflicts with the Supreme Court’s directive in Lucia. Further, inconsistent approaches among the circuits could lead to unequal treatment of Social Security claimants nationwide.

Why This Case Matters

The decision in Raper could have far-reaching implications for Social Security claimants. The Supreme Court will decide whether to grant the cert petition in the next month or two. The Court’s decision to grant or deny certiorari will signal the Court’s willingness to address unresolved questions about the scope of remedies for constitutional violations in administrative adjudications. Stay tuned for updates as the Court considers whether to take up this critical issue.

Attorneys

The petitioner in Raper is represented by NOSSCR Sustaining Members Richard A. (Rick) Culbertson and Sarah Jacobs from Culbertson, Jacobs & Laboda, PLLC, and by Eric Shumsky, Thomas M. Bondy, Kamilyn Y. Choi, and Samantha M. Leff from Orrick, Herrington & Sutcliffe, LLP.

Former NOSSCR Sustaining Member Eitan K. Yanich, Law Office of Eitan Kassel Yanich PLLC represented the plaintiff in Cody.

NOSSCR Sustaining Member David F. Chermol, Chermol & Fishman, LLC, represented the plaintiff in Brooks.