Richard J. M. v. O'Malley

Background

Richard J. M. applied for disability benefits in April 2015. The Social Security Administration denied the application. Administrative Law Judge David Hebert held a hearing on July 30, 2018, and issued a decision denying the claim on August 21, 2018. The Appeals Council declined further review, making the administrative law judge’s decision the Agency’s final decision.

Richard J. M. filed this lawsuit and sought summary judgment, a procedure allowing a court to decide a case based on the undisputed record and applicable law. He argued that the Agency’s decision was unsupported by substantial evidence and contained reversible legal errors. He also argued that the administrative law judge was not properly appointed under the Constitution’s Appointments Clause and the Federal Vacancies Reform Act.

The Agency disputed his arguments. It argued, among other things, that Richard J. M. had forfeited the Appointments Clause challenge by not raising it during the administrative proceedings, and that Nancy Berryhill’s July 16, 2018 ratification of the Social Security administrative law judges’ appointments had cured any appointment problem. After the Supreme Court held in Carr v. Saul that a Social Security claimant may raise an Appointments Clause challenge for the first time in federal court, the Agency continued to argue that Berryhill’s ratification was valid.

Acting Commissioner’s Authority

Berryhill became Acting Commissioner of the Social Security Administration on January 21, 2017, through a 2016 presidential succession memorandum. The Government Accountability Office concluded that her valid period of service under the Federal Vacancies Reform Act ended on November 16, 2017. She stepped down as Acting Commissioner and returned to her position as Deputy Commissioner for Operations. President Trump nominated Andrew Saul to be Commissioner on April 17, 2018, and Berryhill purportedly resumed acting service while that nomination was pending.

On July 16, 2018, Berryhill ratified and reappointed the Agency’s administrative law judges. Hebert held Richard J. M.’s hearing after that ratification and issued the decision denying his claim. The court therefore considered whether Berryhill had authority to ratify the appointment when she did so.

Federal Vacancies Reform Act

The court rejected the Agency’s interpretation that the Federal Vacancies Reform Act allowed an acting official to “spring back” into service after the initial time limit had expired and a later nomination was submitted. The statute generally limits acting service to 210 days after a vacancy begins, subject to provisions allowing continued service while a timely nomination is pending.

The court concluded that the statute’s reference to a person “serving” as an acting officer applied to someone who was still serving when the nomination was made. Because Berryhill’s authorized acting service had already ended before Saul was nominated, the nomination did not authorize her to resume acting service. The court also assumed, without deciding, that Berryhill had served under the Federal Vacancies Reform Act rather than under an alternative provision of the Social Security Act.

Holding and Disposition

The court held that Berryhill was not properly serving as Acting Commissioner in July 2018 and that her ratification of the Agency’s administrative law judges was ineffective. As a result, Hebert was not properly appointed and lacked authority to decide Richard J. M.’s disability claim.

The court granted Plaintiff’s Motion for Summary Judgment, denied Defendant’s Motion for Summary Judgment, vacated the Commissioner’s decision, and remanded the action for a new hearing before a properly appointed administrative law judge other than Hebert. The order did not award disability benefits; it required a new administrative hearing.