United States District Court, E.D. Kentucky, Northern Division, Ashland
MEMORANDUM OPINION AND ORDER
C. REEVES UNITED STATES DISTRICT JUDGE.
Timothy Blackburn filed concurrent applications for
Disability Insurance Benefits under Title II of the Social
Security Act (“the Act”) and Supplemental
Security Income under Title XVI of the Act in July 2014.
[See Administrative Transcript, “Tr.”
233-241.] Administrative Law Judge (“ALJ”) Maria
Hodges denied his claims on November 10, 2016. [Tr. 7-20] The
Appeals Council denied Blackburn's request for review and
thus ALJ Hodges' decision became the final decision of
the Commissioner of Social Security. Blackburn filed an
appeal in this Court on November 1, 2017, alleging that the
Commissioner's decision was not supported by substantial
evidence. [Record No. 1]
filed a motion to amend his Complaint and remand to the
agency for rehearing before a different ALJ. [Record No. 19]
This motion was filed shortly after the Commissioner moved
for summary judgment [Record No. 18]. Relying on the United
States Supreme Court's decision in Lucia v.
S.E.C., 138 S.Ct. 2044 (2018), Blackburn seeks to add a
claim that the Commissioner's decision was invalid
because ALJ Hodges was an “Officer of the United
States” who was not properly appointed under the
Appointments Clause of Article II of the United States
Constitution. Because Blackburn forfeited this claim by
failing to raise it at the administrative level, his motion
to amend the Complaint will be denied as futile. See
Yuhasz v. Brush Wellman, Inc., 341 F.3d 559 (6th Cir.
2003) (holding that leave to amend may be denied where the
amendment would be futile).
involved an investment advisor's challenge to the
procedure by which the Securities and Exchange
Commission's five ALJs were appointed. The SEC had
initiated an administrative proceeding against Lucia based on
his alleged violation of securities laws. 138 S.Ct. at 2049.
The SEC assigned an ALJ to Lucia's case who, after nine
days of testimony and argument, issued an initial decision
against him. On appeal to the SEC, Lucia argued that
the SEC's ALJs are “Officers of the United States,
” and thus subject to the Appointments Clause.
Id. at 2050. Lucia contended that, because the ALJ
in his case was appointed by SEC staff rather than the
President, a Court of Law, or a Head of Department, the ALJ
lacked constitutional authority to perform his job.
that the SEC's ALJs exercised “nearly all the tools
of federal trial judges, ” the Court determined that
they were, indeed, Officers of the United States and subject
to the Appointments Clause. Id. at 2053-55. Because
the ALJ had not been appointed properly, Lucia was entitled
to a new hearing before a properly-appointed official.
Id. at 2055.
the obvious differences between SEC ALJs and SSA ALJs, a
salient feature sets Lucia's challenge apart from
Blackburn's: timeliness. The Supreme Court noted that
“one who makes a timely challenge to the
constitutional validity of the appointment of an officer who
adjudicates his case is entitled to relief.”
Id. (quoting Ryder v. United States, 515
U.S. 177, 182-83 (1995)). But the failure to raise a claim
during the administrative process generally causes a
plaintiff to forfeit his ability to raise the claim in
federal court. Maple v. Afpel, 14 Fed.Appx. 525, 537
(6th Cir. 2001) (“This Court will not review the
ALJ's decision with respect to issues not properly raised
at the administrative level.”). And it appears that
every district court to have considered the issue has
determined that plaintiffs are required to raise similar
challenges at the administrative level. See Garrison v.
Berryhill, No. 1: 17-CV-00302, 2018 WL 4924554 (W.D.
N.C. Oct. 10, 2018) (Appointments-Clause challenge forfeited
when not raised at administrative level); Avila v.
Berryhill, No. EDCV 17-1440-JPR, 2018 WL 4770733 (C.D.
Cal. Oct. 1, 2018) (same); Davidson v. Comm'r of Soc.
Sec., No. 2: 16-CV-00102, 2018 WL 4680327 (M.D. Tenn.
Sept. 28, 2018) (same); Stearns v. Berryhill, No.
C17-2031-LTS, 2018 WL 4380984 (N.D. Iowa Sept. 14, 2018)
plaintiffs are not required to raise facial constitutional
challenges before administrative bodies that could not
entertain them, Jones Bros., Inc. v. Sec. of Labor,
898 F.3d 669 (6th Cir. 2018), Blackburn has not suggested
that the statute providing for the appointment of Social
Security ALJs could not be applied in a
constitutional manner. See 5 U.S.C. § 3105 (The
SSA may “appoint as many administrative law judges as
are necessary for proceedings required to be conducted. . .
.”). As-applied challenges like Blackburn's must be
raised before the administrative agency, absent extraordinary
circumstances excusing the failure to raise the issue.
See Jones, 898 F.3d at 677-78 (citing Freytag v.
Comm'r, 501 U.S. 868 (1991)). And here, Blackburn
has not provided any reason for his failure to raise this
for the reasons outlined above, it is hereby
ORDERED that Plaintiff Blackburn's
Motion to Amend ...