Tom Krause

The U.S. Supreme Court received some 60 Petitions for Writ of Certiorari in Social Security cases in 2023. The Court dismissed many and summarily rejected others. At least one case of interest is still under consideration. The Supreme Court may decide whether to grant certiorari as early as January 5, 2024.

The U.S. Supreme Court decision in Lucia v. S.E.C., 585 U.S. ––––, 138 S. Ct. 2044, 2050–51(2018) continues to vex SSA and claimants’ representatives. In Lucia, the Supreme Courtheld that ALJs within the SEC are “Officers of the United States” who must be appointed by the President, “Courts of Law” or “Heads of Department” as required by the Appointments Clause. In July 2018, Acting Commissioner Nancy Berryhill issued an order ratifying the appointments of the agency’s ALJs to ensure they were properly appointed pursuant to the Lucia case. See SSR 19-1p. Since then, and because SSA had gone so long without a confirmed Commissioner, the questions regarding the appointment of SSA’s ALJs continue.

Brian Dahle challenged the authority of Acting Commissioner Berryhill to ratify the appointments of SSA’s ALJs. The Federal Vacancies Reform Act of 1998, 5 U.S.C. §§ 3345 et seq. (FVRA) grants the President limited power to appoint acting officers to fill vacant non-inferior offices temporarily without first needing to obtain Senate approval. The FVRA states that “the President (and only the President) may direct” persons to be acting officers. The FVRA then authorizes the acting officer to serve for no longer than 210 days or “once a first or second nomination is submitted [for the vacant office],” while “the nomination is pending in the Senate.” That is, whether the nomination of Commissioner Saul, occurring more than 210 days after Deputy Commissioner Berryhill became the Acting Commissioner, triggered a “spring-back” provision effectively sanctioning the ratification of SSA’s ALJs. The District Court sided with the Plaintiff and the Commissioner appealed. See Brian T. D. v. Kijakazi, 580 F. Supp. 3d 615 (D. Minn. 2022), rev’d and remanded sub nom. Dahle v. Kijakazi, 62 F.4th 424 (8th Cir. 2023).

On appeal, the Eighth Circuit held that the FVRA authorizes an individual who has ceased serving as Acting Commissioner after 210 days to begin serving again when a nomination is sent to the Senate. Alternatively, the Acting Commissioner was “directed” to serve by President Obama in a Succession Order and, thus, was properly serving as Acting Commissioner when she ratified the appointment of the SSA ALJs, including the one who issued the decision in this case. See Dahle v. Kijakazi, 62 F.4th 424, 427 (8th Cir. 2023). The Eighth Circuit denied rehearing by the panel and rehearing en banc.  

On August 22, 2023, Mr. Dahle petitioned for a writ of certiorari. The questions presented are:

1. Whether the time limit on acting service imposed by 5 U.S.C. § 3346(a) is best understood as a 210-day grant of time and a tolling provision that extends the grant only if the President submits a nomination before the grant expires, as supported by this Court’s description of § 3346(a) in NLRB v. SW General, Inc., 588 U.S. 288, 296 (2017); and

• Whether the presidential-direction mandate is best read to require the President’s affirmative approval of any acting officer who is appointed during the President’s administration.

The Court requested SSA file a response, a move indicating the Court has some interest in the issues presented. The Court will consider the petition for cert in January 2024. See Dahle v. Kijakazi, No. 23-173 (Aug. 22, 2023).

The Fourth Circuit reached a similar conclusion as the Eighth Circuit in Rush v. Kijakazi, 65 F.4th 114 (4th Cir. 2023). In Rush, the Court again requested SSA file a response to the petition for cert. That response is due in January 2024. See Rush v. Kijakazi, No. 23-243 (Sept. 8, 2023).

The Fifth Circuit heard oral argument on this issue in November 2023. No decision has been issued. See Seago v. Kijakazi, No. 23-40001 (argued Nov. 6, 2023).

If successful, as with the Lucia litigation, numerous ALJs will be without jurisdiction to hear claims. One unanswered question is why SSA has not acted to ensure ratification of the ALJs’ appointments. For example, Acting Commissioner Kilolo Kijazazi could have ratified (again) the ALJs’ appointments when she first assumed office. And newly confirmed Commissioner Martin O’Malley could ratify the appointments. We will keep you informed as to the status of these cases.

Mr. Dahle is represented by NOSSCR Sustaining Member Wes Kappelman and by Mahesha P. Subbaraman. Ms. Rush is represented by NOSSCR Past President and Sustaining Member George Piemonte and Mr. Subbaraman. Ms. Seago is represented by NOSSCR Sustaining Member Jonathan Heeps and Mr. Subbaraman.