Lushaj v. Berryhill

Background

The plaintiff’s hearing before a Social Security administrative law judge and the judge’s decision occurred before the Acting Commissioner ratified that judge’s appointment in July 2018. The plaintiff had not raised a challenge under the Constitution’s Appointments Clause in the federal court case.

The order discussed the Supreme Court’s decision in Carr v. Saul. That decision held that Social Security disability applicants whose hearings or decisions were handled by an administrative law judge whose appointment did not comply with the Appointments Clause were not required to raise that challenge during the agency proceedings before raising it in federal court.

Court’s Action

To promote efficiency, the court directed the parties to meet and discuss whether the case should be sent back to the Commissioner for a new hearing before a different administrative law judge whose appointment complied with the Constitution. The plaintiff was ordered to file, by June 1, 2021, a letter of no more than five pages either requesting remand and providing supporting legal arguments or stating that the plaintiff did not request remand. The Commissioner could file a response of no more than five pages by June 8, 2021, if necessary.

The order warned that declining to request remand at that stage might waive the Appointments Clause challenge in later proceedings, including appeals. It also stated that declining to request remand would not prejudice the plaintiff before the court or change the timing of the court’s decision on the pending motions if the case remained in federal court. Judge Andrew E. Krause did not order remand, decide the Appointments Clause challenge, or rule on the pending motions in this order.