SMITH v. SAUL (2021)

The appellants in these consolidated appeals sought disability benefits under the Social Security Act. After an administrative law judge denied their claims, and the Appeals Council denied review, each appellant filed an action in a district court under 42 U.S.C. § 405(g) for judicial review of the agency's decision.

In the district courts, the appellants argued for the first time that the administrative law judges who denied their claims were not properly appointed under the Appointments Clause of the Constitution. See U.S. Const. art. II, § 2, cl. 2. The district courts ¹ rejected the constitutional claim on the ground that the appellants failed to raise the issue before the agency. The appellants acknowledge that they raised the issue for the first time on judicial review, but they argue on appeal that exhaustion of the issue before the agency is not required.

Appellants’ unexhausted claims are foreclosed by Davis v. Saul, 963 F.3d 790 (8th Cir. 2020), cert. granted, ––– U.S. ––––, 141 S.Ct. 811, 208 L.Ed.2d 397 (U.S. Nov. 9, 2020) (No. 20-105). There, we held that a social security claimant's challenge to the appointment of an ALJ did not present the “rare situation in which a federal court should consider an issue that was not presented to the agency.” Id. at 795. In a post-briefing letter, appellants suggest that Davis did not resolve their argument that issue exhaustion would have been futile because the Commissioner had no power to alter the appointment process for ALJs. But Davis rejected a claim of futility, and explained that “if hundreds of claimants had raised an Appointments Clause challenge before the agency, the Commissioner would have been in a position to avoid an administrative quagmire.” Id. at 794. Even if the Commissioner acting alone could not have resolved a potential problem, he was in a position to bring the matter to the attention of the President to accomplish a change in the appointment process if warranted. See Exec. Order No. 13,843, 3 C.F.R. 844 (2019).

The judgments of the district courts are affirmed.

FOOTNOTES

1.   The Honorable Charles R. Wolle, United States District Judge for the Southern District of Iowa (Nos. 19-2731 and 19-3155), and the Honorable Robert F. Rossiter, Jr., United States District Judge for the District of Nebraska (No. 19-2766).

COLLOTON, Circuit Judge.