Amicus Curiae Brief — Willie Earl Carr, et al., Petitioners v. Andrew M. Saul, Commissioner of Social Security

Nos. 19-1442 & 20-105

IN THE

Supreme Court of the United States

WILLIE EARL CARR AND KIM L. MINOR,

PETITIONERS,

v.

ANDREW M. SAUL,

COMMISSIONER OF SOCIAL SECURITY

RESPONDENT.

JOHN J. DAVIS, ET AL,

PETITIONERS,

v.

ANDREW M. SAUL,

COMMISSIONER OF SOCIAL SECURITY,

RESPONDENT.

On Writs of Certiorari to the

United States Courts of Appeals

For the Tenth and Eighth Circuits

------------------------BRIEF OF AMICUS CURIAE

COLLECTIVE OF SOCIAL SECURITY

ADMINISTRATION

ADMINISTRATIVE LAW JUDGES

IN SUPPORT OF NEITHER PARTY

December 18, 2020

ALAN B. MORRISON

COUNSEL OF RECORD

RICHARD J. PIERCE, JR.

GEORGE WASHINGTON

UNIVERSITY LAW SCHOOL

2000 H STREET NW

Washington, DC 20052

(202) 994-7120

abmorrison@law.gwu.edu

i

CONTENTS

AUTHORITIES ...................................................... ii

INTEREST OF THE AMICI .................................. 1

SUMMARY OF ARGUMENT ............................... 2

ARGUMENT .......................................................... 4

THE COURT SHOULD NOT DISCUSS THE

QUESTION OF WHETHER SOCIAL

SECURITY ALJs ARE INFERIOR

OFFICERS. ....................................................... 4

CONCLUSION ..................................................... 18

APPENDIX

DISABILITY DECISION DATA CHART .....1a

POSITION DESCRIPTION, ALJ, SSA.........2a

ii

AUTHORITIES

Cases

Biestek v. Berryhill, 139 S. Ct. 1148 (2019) .......... 14

Buckley v. Valeo, 424 U.S.1, 126 (1976) .................. 9

Culbertson v. Berryhill, 139 S. Ct. 517 (2019) ..... 14

Freytag v. Commisioner, 501 U.S. 868 (1991) .... 2, 6

Heckler v. Day, 467 U.S. 104 (1984) ............... 10, 11

Heckler v. Edwards, 465 U.S. 870 (1984) .............. 16

Lucia v. Securities and Exchange Commission,

138 S.Ct. 2044 (2018) ......................................Passim

Ramspeck v. Federal Trial Examiners Conference,

345 U.S. 128 (1953) .................................................. 7

Richardson v. Perales, 402 U.S. 389 (1971) .... 13, 15

Sims v. Apfel, 530 U.S. 103 (2000).......................... 15

Sullivan v. Zebley, 493 U.S. 521 (1990) ................. 16

United States v. Arthrex, No. 19-1434, certiorari

granted, November 9, 2020 .................................... 6

Zivotofsky v. Clinton, 566 U.S. 189 (2012) .............. 5

Constitution

Appointments Clause, Art II, § 2, cl. ...............Passim

Statutes

Administrative Procedure Act, 5 U.S.C. § 551....... 7

Longshore and Harbor Workers’ Compensation

Act, 33 U.S.C. § 901 ................................................. 6

National Labor Relations Act, 29 U.S.C. §160....... 6

Pub. L. No. 95-251, 92 Stat. 183 (1978) ................... 8

iii

5 U.S.C. § 554 .............................................................. 13

5 U.S.C. § 3105 .......................................................... 8, 9

5 U.S.C. § 5372 .......................................................... 8, 9

5 U.S.C. § 7521 .............................................................. 9

15 U.S.C. § 77h-1 ........................................................ 18

42 U.S.C. § 405(a) ....................................................... 11

42 U.S.C. § 405(b) ....................................................... 14

42 U.S.C. § 405(g) ....................................................... 10

42 U.S.C. § 406 ............................................................ 14

42 U.S.C. § 423 ........................................................... 10

42 U.S.C. § 902 ............................................................ 13

42 U.S.C. § 904 ............................................................ 13

42 U.S.C. § 1381 ......................................................... 10

42 U.S.C. § 1382 ......................................................... 10

42 U.S.C. § 1383 ......................................................... 10

Rules

5 C.F.R. Part 302 ................................................... 2

5 C.F.R. § 930.201 .................................................. 8

20 C.F.R. .............................................................. 10

Part 404 ........................................................... 10

Part 416 ........................................................... 10

404.900(a) ........................................................ 11

404.900(b) ................................................... 14,15

404.911 ............................................................. 11

404.968 ............................................................. 12

404.970 ............................................................. 13

404.970(a)(4) .................................................... 12

404.975 ............................................................. 13

iv

404.982 ............................................................. 11

404.987 ............................................................. 11

416.1400(a)....................................................... 11

416.1400(b)....................................................... 14

416.1411 ........................................................... 11

416.1468 ........................................................... 12

416.1470 ........................................................... 13

416.1475 ........................................................... 13

416.1482 ........................................................... 11

416.1487 ........................................................... 11

Other Authorities

Administrative Procedure: Hearings Before a

Subcomm. Of the S. Comm. On the Judiciary,

77th Cong. 250 (1941).......................................... 7

37 Fed. Reg. 16,787 (Aug. 19, 1972) ...................... 8

Executive Order 13843, July 10, 2018 .................. 8

Hearings, Appeal, Litigation & Law Manual ..... 16

Jonah Gelbach & David Marcus, Rethinking

Judicial Review of High Volume Agency

Litigation, 96 Texas Law Review 1097 (2018) 15

Social Security Ruling (SSR) 16-3p ..................... 15

Solicitor General Guidance for Agency General

Counsels ................................................................. 3

1

INTEREST OF THE AMICI 1

The amicus curiae Collective of Social Security

Administration Administrative Law Judges is an

unincorporated association of current and retired Social

Security Administration (SSA) administrative law judges

(ALJs), whose cases involve claims made to the

SSA. Amicus and its members have no interest,

financial or otherwise, in the outcome of the

forfeiture issue before the Court in these

consolidated cases. It is filing this brief for two

reasons.

First, the members of amicus have vast

experience with the administration of the

programs for which they serve as ALJs. In this

brief they describe the process by which benefit

determinations are made, which they believe may

be useful to the Court in determining whether

claimants who did not raise an objection to the

status of the ALJ who heard their case had

forfeited the claim that the ALJ was not validly

appointed under the Appointments Clause.

Second, petitioners and respondent SSA

agree that ALJs are inferior officers who were not

appointed by the head of the SSA, which they

contend was required by the Appointments Clause.

Although the merits of that argument are not

before the Court, amicus does not agree with that

position, and in this brief, it will present to the

No person other than the amicus, its members and its

counsel have authored this brief in whole or in part or made

a monetary contribution toward its preparation or

submission. All parties have consented to the filing of this

brief.

1

2

Court the basic facts and an outline of the

argument that supports the position that ALJs at

the SSA are employees and not inferior officers.

SUMMARY OF ARGUMENT

In its decisions in Lucia v. Securities and

Exchange Commission, 138 S.Ct. 2044 (2018), and

Freytag v. Commisioner, 501 U.S. 868 (1991), this

Court adopted a functional approach in deciding

whether individuals employed by the Federal

Government to perform adjudicative functions are

employees or inferior officers under the

Appointments Clause. Under that approach, the

Court examined what the individuals did under the

statutory scheme governing their work, but did not

establish a one size fits all test for determining

their Appointments Clause status.

Nonetheless, following Lucia, the President

took the position that all federal personnel who

perform adjudicative functions, including ALJs at

the SSA, are to be treated as inferior officers. The

President ordered future ALJs to be removed from

the competitive service, and as a result,

“appointment to this position [of ALJ will] not be

subject to the requirements of 5 CFR, part 302,

including examination and rating requirements,

though each agency shall follow the principle of

veteran preference as far as administratively

feasible.” Executive Order 13843, § 3(a), Schedule

3

E, July 10, 2018. 2 After the issuance of the

Executive Order, the Solicitor General provided

legal “Guidance” for agency general counsels

applying Lucia so that “all ALJs and similarly

situated administrative judges should be appointed

as inferior officers under the Appointments

Clause.” 3

That uniform classification is erroneous. As

this

brief

shows,

individuals

performing

adjudicative functions for federal agencies do so

under very different statutes, with very different

roles and assignments, such that the analogy

between the ALJs in Lucia and those who work for

SSA is badly misplaced. This mischaracterization

is not simply a matter of labels; the change in

status has enabled this Administration to argue

that SSA ALJs lose their protected civil service

status because they are “officers” of the United

States and not employees. If that position is

upheld, it would not only harm the ALJs at SSA,

but would remove one pillar of independence that

helps assure claimants that their cases will be

decided under the law, and not based on the

preferences of those who head the SSA.

Amiocus recognizes that the Appointments

Clause issue is not before this Court at this time,

but it will be on remand, or in other cases in which

2 https://www.whitehouse.gov/presidential-actions/executive-

order-excepting-administrative-law-judges-competitiveservice/.

3

https://static.reuters.com/resources/media/editorial/2018072

3/ALJ--SGMEMO.pdf at 2. The Guidance is undated, but note

1 refers to the previously issued Executive Order removing

ALJs from the OPM appointment process.

4

the constitutional issue was raised before the ALJ.

Because of these and other court challenges, the

issue will have to be decided whether or not the

new Administration adheres to the position that

the ALJs at SSA are inferior officers. For that

reason, this brief seeks to inform the Court of the

role that these ALJs have, both for this and future

cases, and because this information may affect the

Court’s conclusion as to whether forfeiture is

appropriate in these cases.

ARGUMENT

THE COURT SHOULD NOT DISCUSS THE

QUESTION OF WHETHER SOCIAL

SECURITY ALJs ARE INFERIOR

OFFICERS.

The underlying, but untested, legal

argument in these cases is that ALJs at the SSA

are inferior officers, who were not properly

appointed, and that therefore the denial of

petititioners’ disability claims must be set aside

and heard again by a properly appointed ALJ.

There are four reasons why this Court should not

address that question at all in these cases.

The only question presented by these

petitions is the forfeiture issue, and the

Appointments Clause issue is not fairly comprised

within the forfeiture question. Second, because the

Appointments Clause issue has not been addressed

by the lower courts in these cases, the Court should

do what it ordinarily does: “await ‘thorough lower

5

court opinions to guide our analysis of the merits.’

Zivotofsky v. Clinton, 566 U.S. 189, 201 (2012).”

Lucia, 138 S. Ct. at 2150, n.1.

Third, the current parties agree on the

outcome of the Appointments Clause issue, but

that could change with the incoming Biden

administration. If it does not, then the Court will

have to do what it did in Lucia: appoint an amicus

to defend the employee status of SSA ALJs. 138 S.

Ct. at 2051. Last, as we now demonstrate, the ALJs

at the SSA are very different from those at the

SEC, and their officer status should not be

determined solely by the outcome in Lucia.

The fundamental mistake made by the

Administration post-Lucia was to treat all of the

more than 1900 administrative law judges working

for federal agencies identically even though they

function in very different ways based on the nature

of the proceeding over which they preside. Without

attempting to cover all functions at all federal

agencies, the types of proceedings over which ALJs

preside fall into four general categories. 4

4 The most recent official counting of ALJs by agency was in

March 2017, when the total number of ALJs was 1931 of

which 1625 were at SSA. https://www.opm.gov/services-foragencies/administrative-law-judges/#url=ALJs-by-Agency.

That total does not include 266 Administrative Patent Judges

at

the

Commerce

Department.

See

https://www.uspto.gov/sites/default/files/documents/

What%20is%20PTAB%20for%20website%2010.24.19.pdf

(p.3).

6

The first are cases in which the agency has

taken some action or filed a case against a private

party. In Lucia, for example, the SEC brought a

proceeding against an individual and a company

seeking injunctive relief, and obtained civil

penalities and a lifetime ban from the investment

industry. 138 S. Ct. at 2050. Similarly, in Freytag,

the IRS had assessed taxes and penalties against

the taxpayers because of $1.5 billion in deductions

allegedly realized in a tax shelter scheme and duly

contested in a Tax Court proceeding. 501 U.S. at

871.

Second are cases like United States v.

Arthrex, No. 19-1434, certiorari granted, November

9, 2020, in which a private party has asked the

Patent & Trademark Office (PTO) to review the

validity of a patent held by the party that will be

on the other side if the PTO agrees to hear the case.

In those cases, the Administrative Patent Judge

(APJ) performs functions like a judge who is

resolving a dispute between private parties, with

the agency taking no position, except that the

Director of the PTO has the right to intervene in an

appellate proceeding to provide its perspective on

the issues presented.

Third, there are cases under the National

Labor Relations Act, in which the general counsel

of the NLRB files an administrative complaint

against an employer or a union, 29 U.S.C. § 160, but

in which the other side will often intervene to

support the general counsel. Similar dynamics

apply in cases under laws like the Longshore and

Harbor Workers’ Compensation Act, 33 U.S.C. §§

7

901 et seq, in which an employee seeks

compensation for an injury and the employer

defends against the claim of liability.

Finally, there are cases like these, in which

the SSA is not an adversary, nor is there any party

on the other side. Rather, the agency is acting to

assure that the laws enacted by Congress are

carried out and that only those claimants who meet

the statutory criteria are awarded benefits. The

manner in which ALJs function under the

applicable statute is explained more fully below,

but even this brief summary makes it clear that

ALJs at the SSA have a very different role from the

ALJs at the SEC, the NLRB, and the PTO. And

while there are no ALJs at the Department of

Veterans Affairs, the programs there are quite

similar to those at SSA, where they have other

individuals with different titles who perform

functions closer to those of ALJs at the SSA than to

those ALJs at the other agencies discussed above.

Congress created the position of ALJ (then

called hearing examiners) in the Administrative

Procedure Act, 5 U.S.C. §§ 551 et seq (APA), as

“classified Civil Service Employees.” Ramspeck v.

Federal Trial Examiners Conference, 345 U.S. 128,

133 (1953). Congress placed ALJs, and other

similar employees, in the civil service to prevent

political appointments to these positions and to

ensure public confidence in the administrative

process.

Administrative Procedure: Hearings

Before a Subcomm. Of the S. Comm. On the

Judiciary, 77th Cong. 250, 876, 1000 (1941).

8

In the APA, Congress gave agencies the

power to appoint hearing examiners, 5 U.S.C. §

3105, but it coupled that power with the power of

the Civil Service Commission (Commission) to

determine who is qualified to be a hearing

examiner, 5 U.S.C. § 5372. 5 The Commission

implemented a merit-based system for determining

eligibility to be a hearing examiner, and the

agencies appointed hearing examiners from the list

of applicants that the Commission determined to

be eligible. In 1972, the Commission changed the

name of hearing examiners to administrative law

judges. Change of Title to Administrative Law

Judge, 37 Fed. Reg. 16,787 (Aug. 19, 1972). In 1978,

Congress ratified that decision by statute and

renamed the Commission the Office of Personnel

Management (OPM). Pub. L. No. 95-251, 92 Stat.

183 (1978).

Prior to the President issuing Executive

Order 13843 in 2018, if any agency needed to hire

ALJs, it would request a list of qualified applicants

from a ranked list created by OPM based on a

competitive examination. See 5 C.F.R. § 930.201.

As a result, although ALJs usually work for a

single agency, the ALJs, like the ones who decided

This statutory section is within Part III of the statute

entitled “Employees,” which further reveals Congress’s

intention that ALJs are employees, absent a finding that the

Appointments Clause demands that a particular ALJ is an

officer.

5

9

these cases, became eligible to be ALJs through a

process overseen by OPM.

Congress also provided a number of

protections for ALJs to assure their independence

in making their decisions. For ALJs, including

those at SSA, these include a prohibition against

SSA disciplining an ALJ except for good cause and

then only after approval by the Merit Systems

Protection Board, 5 U.S.C. § 7521; determining an

ALJs’ compensation, 5 U.S.C. § 5372; assigning a

case to an ALJ except in rotation, 5 U.S.C. § 3105;

or assigning an ALJ duties that are inconsistent

with the duties and responsibilities of an ALJ. Id.

It is evident from this statutory scheme that

Congress did not intend ALJs to be inferior officers

and did not provide for their appointment by the

head of the agency for which they work, as required

by the Appointments Clause. Therefore, unless

that Clause requires that the ALJs at SSA be

officers, rather than employees, the judgment of

Congress as to their status as employees must be

sustained.

This Court in Buckley v. Valeo, 424 U.S.1,

126 (1976), established the test for determining

who is an officer of the United States: “any

appointee

exercising

significant

authority

pursuant to the laws of the United States is an

‘Officer of the United States,’ and must, therefore,

be appointed in the manner prescribed by § 2, cl. 2,

of that Article.” Accordingly, this brief will examine

the functions that the ALJs at the SSA perform and

10

how their work fits into the overall structure of the

SSA in order to determine whether ALJs “exercise

significant authority of the United States” at SSA.

Because most of their cases involve claims for

disability, and because the claims in these cases

are for disability, this brief will refer only to their

roles in disability claims, although the work on

other cases is in all material respects the same.

Social Security disability programs are the

largest of several Federal programs that provide

financial

assistance

to

individuals

with

disabilities who are unable to work as a result.

Heckler v. Day, 467 U.S. 104, 105-106 (1984).

Disability insurance benefits are available under

title II of the Social Security Act to individuals

who have a disability and meet medical criteria,

provided that they or certain members of their

family worked long enough and paid Social

Security taxes. Supplemental Security Income

(SSI) benefits, including disability benefits, are

available to indigent individuals under title XVI

of the Social Security Act. 42 U.S.C. §§ 1381,

1382. Parallel statutes and regulations exist

covering these two programs. However, the

relevant law and regulations governing the

determination of disability are the same.

Compare 42 U.S.C. § 423 with 42 U.S.C. § 1382

and 20 C.F.R. Part 404 with 20 C.F.R. Part 416. 6

There are no limits on how many claimants

can receive disability payments; they just have to

6 Title 42 U.S.C. § 1383(c)(3) renders the judicial provisions

of 42 U.S.C. § 405(g) fully applicable to the claims for SSI.

11

qualify. As this Court observed, to carry out these

programs, “the Secretary [now the Commissioner

of SSA] and Congress have established an

unusually protective four-step process for the

review and adjudication of disputed claims.”

Heckler at 106. In doing so, the Commissioner acts

pursuant to 42 U.S.C. § 405(a), which provides him

“full power and authority to make rules and

regulations ... which are necessary or appropriate

to carry out [the law including] the nature and

extent of the proofs and evidence and the method

of taking and furnishing the same in order to

establish the right to benefits hereunder.”

Unlike cases before ALJs in most other

agencies, the ALJs at SSA decide disability cases

only after claimants have had one and often two

levels of prior review. 20 C.F.R §§ 404.900(a),

416.1400(a)(describing

four

step

process).

Although each step in the process is mandatory,

including deadlines, SSA has very generous rules

allowing for good cause exceptions. 20 C.F.R §§

404.911, 416.1411, which include extensions of

time to file suit in a federal district court. 20 C.F.R

§§ 404.982, 416.1482. Furthermore, even when a

claimant fails to seek timely review of an adverse

determination, SSA rules provide for reopening a

decision in certain circumstances. 20 C.F.R §§

404.987-989, 416.1487-1489.

Attached in the Appendix to this brief (App.

1a) is a chart that SSA prepared for its FY 2021

budget request, which shows the numbers of

disability cases resolved at various levels in the

process during FY 2019.

Thus, there were

12

2,231,554 decisions at the first level, which is

handled by the states. Of those, 37% of the claims

were granted.

Most states provide for

reconsideration, but 21% of the denials are issued

in states that do not provide for reconsideration. Of

the 532,771 reconsiderations sought in that year,

13% were granted. In that same year, ALJs

decided 562,414 cases, allowing claims in 45%.

An SSA claimant who is denied relief by an

ALJ must request review by the agency’s Appeals

Council within 60 days of receiving notice of an

adverse decision. 20 C.F.R §§ 404.968, 416.1468.

The Council consists of “approximately 53

Administrative Appeals Judges, 44 Appeals

Officers, and several hundred support personnel.” 7

It is the policymaking arm of the SSA with respect

to particular claims. See, e. g., 20 C.F.R. §

404.970(a)(4) (Council will review an ALJ decision

if “[t]here is a broad policy or procedural issue that

may affect the general public interest…”). In

addition to reviewing ALJ decisions adverse to

claimants, the Council also reviews a modest

number of cases favorable to claimants, in an effort

to assure consistency in the decisions. The Appeals

Judges on the Council would appear to be at least

inferior, and perhaps principal, officers, although

none of them are appointed by the President; only

7 https://www.ssa.gov/appeals/about_ac.html.

That data was

available when counsel visited the site in late November, but

on December 9, 2020, it was no longer at the site, although

an SSA index suggests that the data is available at that site.

https://search.ssa.gov/search?utf8=%E2%9C%93&affiliate=s

sa&sort_by=&query=%22Appeals+Officers%22.

13

the Commissioner, the Deputy Commissioner, and

Inspector General at SSA are Presidential

appointees. 42 U.S.C. §§ 902, 904.

SSA regulations provide for the scope of

review by the Appeals Council, which includes in

some cases the receipt of additional evidence, 20

C.F.R §§ 404.970, 416.1470, as well as the right to

file briefs. 20 C.F.R §§ 404.975, 416.1475. The

Appeals Council generally sits in panels of two or

three, and in FY 2019, it decided 94,600 cases,

granting relief in only 1%, but remanding another

11%. App. 1a. At that point, many claimants seek

judicial review in the District Courts, which

decided 18,116 cases in that year, ruling for the

claimant in 2%, but also remanding 50% for further

consideration. Id.

Automatically equating all ALJs, including

those at SSA, with ALJs at the SEC, as the

President and Solicitor General have done, is

unsupported for several reasons. During the same

period that the SEC had only five ALJs, SSA had

1625, see note 4, supra, who each issued hundreds

of decisions annually. In addition, the hearings

held by the ALJ in Lucia, were formal hearings

under the APA, 5 U.S.C. § 554, whereas hearings

before ALJs at the SSA, although conducted under

the APA, are quite different. They were described

this way by this Court in Richardson v. Perales, 402

U.S. 389, 400-401 (1971):

There emerges an emphasis upon the

informal rather than the formal. This, we

think, is as it should be, for this

14

administrative procedure, and these

hearings, should be understandable to the

layman claimant, should not necessarily be

stiff and comfortable only for the trained

attorney, and should be liberal and not strict

in tone and operation. This is the obvious

intent of Congress so long as the procedures

are fundamentally fair.

In particular, “Evidence may be received at any

hearing before the Commissioner of Social Security

even though inadmissible under rules of evidence

applicable to court procedure.”

42 U.S.C. §

405(b)(1). As the SSA regulations state, the

proceedings are conducted “in an informal, nonadversarial manner.” 20 C.F.R §§ 404.900(b),

416.1400(b). See also Biestek v. Berryhill, 139 S.

Ct. 1148, 1152 (2019) (describing ALJ hearings as

“recognizably adjudicative in nature,” but “less

rigid than those a court would follow”).

Claimants have the right to be represented

at all stages of the disability process, either by an

attorney or by a non-attorney representative. 42

U.S.C. § 406. Your Right to Representation. 8 In

most cases, claimants may be charged for

representation only with the written approval of

SSA, id., and the amount of fees that a claimant

may be charged is regulated by law. See generally

Culbertson v. Berryhill, 139 S. Ct. 517 (2019). Even

at the ALJ stage, many claimants are

8 Your Right to Representation (detailed pamphlet written

for claimants) https://www.ssa.gov/pubs/EN-05-10075.pdf.

15

unrepresented, others are represented by nonlawyers, and others are represented by lawyers.

This Court has observed that “the

differences between courts and agencies are

nowhere more pronounced than in Social Security

proceedings.” Sims v. Apfel, 530 U.S. 103, 110

(2000) (plurality op.). Unlike Article III judges, or

other ALJs who preside over adversarial

enforcement proceedings like those at the SEC,

this Court has described their function as

“inquisitorial rather than adversarial,” in which

the ALJs have the “duty to investigate the facts

and develop the arguments both for and against

granting benefits.” Id. at 111 (citing to Richardson,

supra, at 400-401 and 20 C.F.R. § 404.900(b)).

Because of these differences, this Court ruled in

Sims that claimants need not present to the

Appeals Council all of the issues that they are

raising in court. Id. at 112. Thus, although ALJs

render decisions that either grant or deny the

claimant a disability payment, their duties and

powers are very different from those of traditional

judges and, as we now show, from ALJs at the SEC.

SEC ALJs “preside over proceedings that

often last months and resemble civil litigation in

Article III courts.” Jonah Gelbach & David Marcus,

Rethinking Judicial Review of High Volume Agency

Litigation, 96 Texas Law Review 1097, 1103

(2018). By contrast, ALJs at SSA have different

responsibilities. For example, SSA ALJs are not

tasked with making credibility findings. Social

16

Security Ruling (SSR) 16-3p. 9 Rather, SSA

regulations stipulate that in determining whether

an individual is disabled, ALJs are to assess the

extent to which an individual’s symptoms are

consistent with the objective evidence. 20 C.F.R. §§

404.1529, 416.929. The agency has instructed that

“[i]n evaluating an individual’s symptoms, our

adjudicators will not assess an individual’s overall

character or truthfulness in the manner typically

used during an adversarial court litigation.” Id.

While SSA ALJs can issue subpoenas, they

are not empowered to enforce those subpoenas.

Instead, “[i]f the ALJ finds the information

[requested in the subpoena] is reasonably

necessary for the full presentation of the case, he

or she will prepare a memorandum to [the Office of

the General Counsel], requesting enforcement of

the subpoena.” Hearings, Appeal, Litigation & Law

Manual (HALLEX) I-2-5-82. Not only does the SSA

ALJ not have the power to enforce the subpoena,

he or she is not even empowered to decide whether

the subpoena enforcement is critical to the

adjudication of the case. That role is delegated to

the agency’s General Counsel (OGC). Thereafter,

“OGC will review the request and determine

whether to seek a Federal court order to enforce the

subpoena.” Id.

9 Social Security Rulings (SSRs) are agency rulings published

“under the authority of the Commissioner of Social Security”

which “are binding on all components of the Social Security

Administration.” 20 CFR § 402.35(b)(1); see Sullivan v.

Zebley, 493 U.S. 521, 530, n. 9 (1990), citing Heckler v.

Edwards, 465 U.S. 870, 873, n. 3 (1984).

17

The SSA has not empowered its ALJs to

sanction misconduct, including representative

misconduct. Instead, it has enacted comprehensive

regulations that set out the process for sanctioning

representatives, and this process does not include

the ALJ before whom the misconduct occurred. See

20 C.F.R. §§ 404.1740-1799, 416.1540-1599.

Rather, the power to determine whether such

conduct is sanctionable is delegated to the agency’s

OGC.

20 C.F.R §§ 404.1750, 416.1550; see

HALLEX I-1-1-50.

Most significantly, ALJs at SSA apply

agency policy; they do not set or influence policy.

In the Appendix to this brief is a standard Position

Description for ALJs at SSA (PD). App 2a-.8a. The

section entitled SUPERVISION AND GUIDANCE

makes it clear that ALJs are “subordinate to the

Commissioner in matters of policy and the

interpretation of the law,” and that the

Commissioner has only “delegated authority to the

incumbent [ALJ] to apply agency policy regarding

the administrative adjudication and review of

claims.” App. 6a. The PD instructs ALJs to refer

legal issues on which “the agency has not issued an

opinion... to the agency’s Office of the General

Counsel so that the agency can make a decision on

the issue.” App 9a-10a. Equally significant is the

fact that SSA has enumerated nineteen specific

actions that ALJs may take, underscoring the

limits of their powers. App 4a-5a.

Moreover, while ALJs at the SSA can

authorize financial payments to claimants, they

cannot impose monetary penalties against any

18

private party. By contrast, ALJs at the SEC can

issue cease and desist orders, bar defendants from

doing securities industry work, and order

disgorgement and payments to injured investors.

15 U.S.C. § 77h-1. All of these orders are subject to

plenary review by the SEC, but they are

nonetheless more far-reaching than the powers of

ALJs at the SSA.

Accordingly, the automatic equation of SEC

and SSA ALJs by the President and the Solicitor

General is inappropriate for at least three reasons.

First, the five ALJs at the SEC decide a small

number of cases in an adversarial context seeking

injunctive relief and monetary penalties, while the

1625 ALJs at the SSA annually determine

hundreds of thousands of claims for benefits in an

inquisitorial context. Second, SSA ALJs make one

of many decisions in a multi-level decisionmaking process. Third, the powers and duties of

the ALJs at the SSA are quite different from the

powers and duties of the ALJs at the SEC or at

many other regulatory agencies. When these or

other SSA cases reach the merits of the

Appointments Clause claims, the Court will then

decide, based on these facts and others that the

parties present, whether ALJs at the SSA are

employees or inferior officers.

CONCLUSION

Regardless of what this Court concludes on

whether petitioners’ Appointments Clause claims

were forfeited for failure to raise them before the

SSA, the Court should not discuss the merits of

19

those claims because they are not before the Court

and because no existing party argues that ALJs at

the SSA are employees, not inferior officers, which

is the issue on the merits.

Respectfully submitted,

Alan B. Morrison

Counsel of Record

RICHARD J. PIERCE, JR.

George Washington

University Law School

2000 H Street NW

Washington D.C. 20052

202 994 7120

abmorrison@law.gwu.edu

December 18, 2020