Opinion
Civil No. 4:17-CV-1732
04-01-2020
EDWIN EUGENE MIER, Plaintiff, v. ANDREW SAUL, Commissioner of Social Security, Defendant.
(Judge Brann)
( ) REPORT AND RECOMMENDATION
I. Factual and Procedural Background
This case is a Social Security appeal which is fully briefed on its merits. In this appeal, the plaintiff argues various merits issues and also contends that this appeal should be remanded for rehearing before a properly appointed Administrative Law Judge pursuant to Lucia v. S.E.C., 138 S. Ct. 2044 (2018), which held that certain federal agency Administrative Law Judges were "Officers of the United States," within the meaning of the Appointments Clause of the United States Constitution, Art. II, § 2, cl. 2, and therefore should have been appointed to their positions by either the President, a court of law, or the Department head.
Having asserted that this case was heard by an ALJ who was appointed through a constitutionally infirm process under the Appointments Clause, the plaintiff filed a motion to remand this case. (Doc. 16). We then stayed consideration of this case because the question of the application of Lucia to Social Security ALJs was pending before the United States Court of Appeals for the Third Circuit in two cases, Bizarre v. Comm'r of Soc. Sec., No. 19-1773 (3d Cir. 2020) and Cirko v. Comm'r of Soc. Sec., No. 19-1772 (3d Cir. 2020). These appeals raised one of the same issue presented in this case, i.e., whether a plaintiff forfeited the appointments clause challenge by failing to raise the issue during administrative proceedings. On January 23, 2020, the Court of Appeals held that "that exhaustion is not required in this context," and affirmed a decision which called for the remand of a Social Security appeal for re-hearing by an ALJ who was properly appointed under the Appointments Clause to the United States Constitution. Cirko on behalf of Cirko v. Comm'r of Soc. Sec., 948 F.3d 148, 152 (3d Cir. 2020).
The holding in Cirko appeared to control here and would compel a remand of this case. Recognizing our duty to follow the mandate of the Court of Appeals in Cirko once that mandate issued, we lifted this stay, in part, but deferred any action on a remand based upon the Cirko decision until the time for filing a petition for rehearing en banc expired and the mandate of the Court of Appeals issued in that case. On March 9, 2020, the Commissioner filed a petition for rehearing en banc in Cirko. This petition for rehearing had the effect of delaying the issuance of the mandate in Cirko pending the resolution of this petition for rehearing, and we further stayed this case pending the outcome of the Cirko petition for rehearing.
We are now informed that the Court of Appeals denied the Commissioner's petition for rehearing on March 26, 2020. Rule 41 of the Federal Rules of Appellate Procedure provides that the Court of Appeals mandate must issue 7 days after the entry of an order denying a petition for hearing. Fed. R. App. P. 41(b). Therefore, the issuance of the mandate in Cirko, which will control this disposition of this case, is now imminent. Recognizing that the plaintiff's appeal has been delayed for a protracted period of time while the parties litigated this issue, for the reasons set forth below, it is recommended that this court grant the plaintiff's motion to remand, and order this case remanded to the Commissioner for a hearing before a properly appointed ALJ once the mandate in Cirko is issued by the Court of Appeals.
Depending upon whether the appellate court excludes weekends from this 7-day deadline, we anticipate that the mandate will issue on April 3 or April 7, 2020. --------
II. Discussion
We believe that these recent developments have legal significance in this case since once the Court of Appeals issues its mandate in Cirko, as a trial court we "must implement both 'the letter and the spirit of the mandate, taking into account the appellate court's opinion and the circumstances it embraces.' " Delgrosso v. Spang & Co., 903 F.2d 234, 240 (3d Cir. 1990). At this juncture, the mandate of the Court in Cirko, which will control the outcome in this case, must issue 7 days after the entry of an order denying a petition for hearing, an event which reportedly took place on March 26, 2020. Fed. R. App. P. 41(b).
With the denial of this petition for rehearing, the only possible legal avenue of relief for the Commissioner in Cirko would be a petition for writ of certiorari directed to the United States Supreme Court. However, the granting of such petitions is entirely discretionary with the Supreme Court and, in our view, the mere possibility that the Commissioner might seek discretionary Supreme Court review, standing alone, does not justify further delay in the litigation of this Social Security appeal. We reach this conclusion guided by the knowledge that any stay of this mandate pending Supreme Court review would require an unusual, exacting and highly demanding showing. As the Court of Appeals has observed:
In exceptional cases, a party may obtain a stay of our mandate if it can demonstrate that its petition presents a "substantial question and that there is good cause for a stay." Fed. R. App. P. 41(d)(2)(A) (2007). This standard requires the movant to show: (1) a reasonable probability that the Supreme Court will grant certiorari; (2) a reasonable possibility that at least five Justices would vote to reverse this Court's judgment; and (3) a likelihood of irreparable injury absent a stay. In a close case, the movant should make a showing that, on balance, the interests of the parties and the public favor a stay.Nara v. Frank, 494 F.3d 1132, 1133 (3d Cir. 2007) (emphasis added).
Given the extraordinary showing that the Commissioner would have to make in order to obtain a stay of the mandate in Cirko pending Supreme Court review, we do not believe that further delay in these proceedings is necessary or appropriate based upon a speculative notion that the Commissioner may seek further review of that decision, may request a stay of Cirko pending Supreme Court review, and may satisfy the very precise standards prescribed by law for such a stay. Instead, in accordance with the Court of Appeals' decision in Cirko, we recommend that this court join the rising tide of case law in this circuit remanding Social Security appeals to the Commissioner for a new hearing before an ALJ who has been properly appointed under the Appointments Clause to the United States Constitution. See e.g., Dove-Ridgeway v. Saul, No. CV 19-35-LPS-MPT, 2020 WL 1506119, at *1 (D. Del. Mar. 30, 2020); Tate v. Saul, No. CV 19-3751, 2020 WL 1443492, at *1 (E.D. Pa. Mar. 19, 2020); Burke v. Saul, No. CV 19-3206, 2020 WL 1042422, at *2 (E.D. Pa. Mar. 4, 2020); Anderson v. Saul, No. CV 3:18-2238, 2020 WL 814927, at *1 (M.D. Pa. Feb. 18, 2020); Walker v. Saul, No. CV 18-5542, 2020 WL 996420, at *1 (E.D. Pa. Feb. 28, 2020); Sanchez v. Saul, No. CV 18-5018, 2020 WL 430811, at *1 (E.D. Pa. Jan. 28, 2020); Simmons on behalf of A.B. v. Saul, No. CV 19-2205, 2020 WL 470304, at *1 (E.D. Pa. Jan. 29, 2020). We further note that, consistent with the Supreme Court's decision in Lucia, which prescribed that the remedy for an Appointments Clause violation was a remand to an ALJ other than the ALJ who initially heard the case, this court should direct a "remand the case for a new administrative hearing before a constitutionally appointed ALJ other than the one who presided over the claimant's first hearing." Burke v. Saul, No. CV 19-3206, 2020 WL 1042422, at *2 (E.D. Pa. Mar. 4, 2020). Finally, "[b]ecause the Court has found a basis for remand on these grounds, we need not address the plaintiff's remaining arguments. To the extent that any other error occurred, it may be remedied on remand." Holst v. Saul, No. 4:18-CV-2182, 2019 WL 5457920, at *9 (M.D. Pa. Sept. 10, 2019), report and recommendation adopted, No. 4:18-CV-02182, 2019 WL 5424365 (M.D. Pa. Oct. 23, 2019).
III. Recommendation
Accordingly, for the foregoing reasons IT IS RECOMMENDED that the plaintiff's motion to remand (Doc. 16), be GRANTED, the final decision of the Commissioner denying these claims should be vacated, and this case should be remanded to the Commissioner to conduct a new administrative hearing before a constitutionally appointed ALJ other than the one who presided over the claimant's first hearing once the mandate in Cirko is issued by the Court of Appeals.
The parties are further placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall
make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.
Submitted this 1st day of April 2020.
/S/ Martin C . Carlson
Martin C. Carlson
United States Magistrate Judge