Aug 1, 2018

CA6 Opinion On When Lucia Argument Must Be Raised

     After the Supreme Court found in Lucia v. SEC that the Administrative Law Judge (ALJ) appointment process was unconstitutional, the Solicitor General, who represents the federal government before the Supreme Court, told agencies that the Department of Justice would only defend ALJ decisions issued before the date that the ALJs were constitutionally appointed on the grounds that no objection was made while the case was pending before the agency.
     We've just gotten the first decision of a Court of Appeals on this issue and the Court wasn't buying that argument. In the case before the Sixth Circuit, Jones Brothers v. Secretary of Labor, the objection was filed before the Federal Mine Safety and Health Review Commission but not before the ALJ. Here's some language from the opinion:
... This administrative agency, like all administrative agencies, has no authority to entertain a facial constitutional challenge to the validity of a law. An administrative agency may not invalidate the statute from which it derives its existence and that it is charged with implementing. See Mathews v. Diaz , 426 U.S. 67, 76 (1976); Weinberger v. Salfi , 422 U.S. 749, 765 (1975); Johnson v. Robison, 415 U.S. 361, 368 (1974); Pub. Util. Comm’n v. United States, 355 U.S . 534, 539–40 (1958). 
Each of the three branches of the federal government, it is true, has an independent obligation to interpret the Constitution. But only the Judiciary enjoys the power to invalidate statutes inconsistent with the Constitution. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177–78 (1803). 
We thus could not fault a petitioner for failing to a raise a facial constitutional challenge in front of an administrative body that could not entertain it. See McCarthy v. Madigan , 503 U.S. 140, 147 – 48 (1992). To hold otherwise would be to stretch forfeiture beyond its breaking point. We must read the statute in light of its constitutional setting: The Mine Act establishes an agency dispute - resolution scheme of limited scope. In that context, “questions of law” include only those legal claims the Commission is fit to decide and fix. See Plaquemines Port, Harbor & Terminal Dist. v. Fed. Mar. Comm’n , 838 F.2d 536, 544 (D.C. Cir. 1988) (Bork, J.); Motor & Equip. Mfrs. Ass’n v. EPA, 627 F.2d 10 95, 1114–15 (D.C. Cir. 1979). ...
     The Court went on to the more  complicated question of whether the petitioner forfeited the Lucia argument for not raising "as applied" constitutional challenge earlier but eventually concluded that the petitioner had not forfeited the argument. I see nothing in the opinion that would not apply to Social Security with at least as much force.


Anonymous said...

Your reading of the holding is different than mine:

"In the final analysis, we generally expect parties like Jones Brothers to raise their as-applied or constitutional-avoidance challenges before the Commission and courts to hold them responsible for failing to do so."

Joshua Grant said...

Scotus decision Sims v. Apfel, 530 U.S. 103 (2000) has already stated that a petitioner does not have to raise an issue before SSA to be valid.

I'm honestly shocked that SSA hasn't already begun to remand cases pending at the appeals council. It seems they don't mind wasting tax payer dollars by having claimants sue in federal court for what's basically a guaranteed remand.

My only guess is that they know very few take it to the federal level, so it's basically a numbers game. Still morally wrong.

Anonymous said...

Sung to the tune of ‘Julia’ by the Beatles.

What the ALJ said was meaningless
The Justice Department lawyer did confess
Should we just remand them all I guess
Just to please you Lucia

Anonymous said...

"One option is to say that, when the Mine Act says “[n]o objection that has not been urged
before the Commission shall be considered by the court,” 30 U.S.C. § 816(a)(1), it refers to
objections of any sort, no matter their nature. Under that approach, if the agency lacks authority
to entertain or remedy the petitioner’s claim, that would always establish the “extraordinary
circumstance” necessary to excuse the forfeiture. But that solution simply takes us back to the
same inquiry we require: Was the agency competent to entertain the petitioner’s claim? And it
does so by overlooking the section of the Mine Act that enumerates the limited objections
petitioners may bring before the Commission in the first place. Id. § 823(d)(2)(A)(ii). "

Anonymous said...

Even if SSA were to accept that their ALJs are "officers" and not "mere employees" the requirement would not be universal. Note that many ALJs at SSA were appointed by a Commissioner who was appointed by the President and confirmed by the Senate, thus a sorting process would be necessary. Given the tens of thousands of cases, IMHO it probably will not happen without an express judicial mandate.

Anonymous said...


“Still morally wrong.”

Is it more or less amoral than obtaining remand based on a pure technicality, rather than on the merits? Also, does SSA have a moral obligation to take away benefits from any claimant who received a favorable ALJ decision? An unconstitutional decision is an unconstitutional decision, no?

Anonymous said...


If ALJs are officers, they are improperly appointed as the Lucia Court found.

If ALJs are employees, they are improperly rendering final decisions, a role reserved to officers as the Freytag Court held.

So, the distinction does not appear to make a difference.


I would say it is more morally wrong for an agency to knowingly ignore claims which are constitutionally deficient, as opposed to individuals who have a right to a constitutionally valid disability claims process.

As to your second question, I do not believe reopening a favorable (or unfavorable) determination is of moral consequence as the matter is closed and it would be a claimant's burden to request reopening. However, at least at the AC, and arguably at the court level, SSA has a responsibility to ensure the process is applied correctly.

Anonymous said...

@6:47pm - The Agency is barred from finding its own decisions/final determinations unconstitutional. That is the first thing pointed out in the decision by the 6th Circuit.

If the agency felt there was some improper decision, it is limited to reopening under the rules of administrative finality excluding those where fraud or similar fault were involved (e.g. Eric Conn cases).

Administrative agencies don't fare well in court when having temper-tantrums.

David Tucker said...


SSA and ALJ's deny claimaints all the time using technicalities.

As for your comment about reversing those who were given favorable decisions. There are no injured parties in that case, so those decisions would stand.

David Tucker said...


Barred by whom?

Anonymous said...


SSA is barred from concluding a statute is unconstitutional as the Marbury Court held that interpretation of statute as to constitutionality is reserved to the judiciary. I think your point is that SSA may not be barred from reopening claims

Arguably, SSA might be able to pass regulations allowing for reopening on the basis of a change in legal precedent, but the current regulations seem to cut directly against that.