Tom Krause, Litigation Director

In December 2023, we included an article discussing the status of several cases challenging the legality of the appointment of SSA’s ALJs. Here is an update to that article.

For background, in 2018, the Supreme Courtheld that ALJs within the SEC are “Officers of the United States” who must be appointed by the President, as required by the Appointments Clause. Lucia v. S.E.C., 585 U.S. ––––, 138 S. Ct. 2044, 2050–51 (2018). In July 2018, Acting Commissioner Nancy Berryhill issued an order ratifying the appointments of the agency’s ALJs to ensure they were properly appointed according 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 validity of the appointment of SSA’s ALJs continued.

Several cases 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 plaintiffs in two cases filed petitions for certiorari questioning whether Ms. Berryhill had the authority to do so after serving so long as Acting Commissioner.

We noted in December that two cases were pending before the Supreme Court, Dahle and Rush. The Supreme Court denied cert in both cases. See Rush v. Kijakazi, 65 F.4th 114 (4th Cir. 2023), cert. denied sub nom. Rush v. O’Malley, No. 23-243, 2024 WL 674707 (U.S. Feb. 20, 2024); Dahle v. Kijakazi, 62 F.4th 424 (8th Cir. 2023), cert. denied sub nom. Dahle v. O’Malley, No. 23-173, 2024 WL 71921 (U.S. Jan. 8, 2024). In addition, in January 2024, the Fifth Circuit ruled against the plaintiff on this issue in Seago v. O’Malley, 91 F.4th 386 (5th Cir. 2024). As of this writing, the claimant has not filed a petition for cert.

Currently, the issue is still being litigated. The odds of Supreme Court review, however, are not looking good.