United States District Court, E.D. Pennsylvania
MEMORANDUM AND ORDER
ELIZABETH T. HEY, U.S.M.J.
Marant (“Plaintiff”) seeks review of the
Commissioner's decision denying her claim for disability
insurance benefits (“DIB”). She argues, among
other things, that the administrative law judge
(“ALJ”) who presided over her administrative
hearing was not properly authorized to act under the
Appointments Clause of the United States Constitution, see
U.S. CONST. art. II, § 2, cl.2, and that she is entitled
to remand for her case to be heard before a constitutionally
appointed ALJ. Doc. 12 at 2-3. Defendant does not dispute the
impropriety of the ALJ's appointment, but asserts that
Plaintiff has forfeited the claim by failing to raise it at
any point in the administrative proceedings. Doc. 15 at 4-13;
Doc. 16 at 1-2. Defendant has filed a motion to stay
consideration of the case pending the Third Circuit's
consideration of two cases on its docket presenting the same
issue. Doc. 16 (citing Cirko v. Berryhill, No.
19-1772 (3d Cir.) (appeal of M.D. Pa. Civ. No. 17-680, ECF
Doc. 26); Bizarre v. Berryhill, No. 19-1773 (3d
Cir.) (appeal of M.D. Pa. Civ. No. 18-42, ECF Doc. 30)). For
the reasons that follow, I will grant Defendant's motion
and stay consideration of the case pending a decision from
the Third Circuit.
protectively filed for DIB on October 16, 2014, claiming that
she became disabled on August 20, 2010, due to several
physical and emotional disorders. Tr. at 48, 132,
The application was denied initially, id. 60-64, and
Plaintiff requested an administrative hearing before an ALJ,
id. at 68, which took place on August 15, 2017.
Id. at 27-47. On September 6, 2017, the ALJ found
that Plaintiff was not disabled. Id. at 14-22. The
Appeals Council denied Plaintiff's request for review on
October 23, 2018, id. at 1-3, making the ALJ's
September 6, 2017 decision the final decision of the
Commissioner. 20 C.F.R. § 404.981. Plaintiff, who was
represented by counsel, did not challenge the ALJ's
authority before either the ALJ or the Appeals Council.
commenced this action in federal court on November 7, 2018.
Doc. 1. After the parties filed their briefs, Defendant filed
a motion to stay consideration of the case pending the Third
Circuit's consideration of the Cirko and
Bizarre appeals. Doc. 16. Plaintiff responded
requesting that the court deny the stay and address her
claims. Doc. 18.
brief, in addition to challenging the merits of the ALJ's
decision, Plaintiff challenges the authority of the ALJ to
adjudicate her claim for benefits. Doc. 12 at 2-4. The claim
challenging the ALJ's authority finds its genesis in the
Supreme Court's holding in Lucia v. Securities and
Exchange Commission, in which the Supreme Court held
that Securities and Exchange Commission (“SEC”)
ALJ's are “Officers of the United States”
subject to the Appointments Clause, rather than mere SEC
employees. U.S. __, 138 S.Ct. 2044, 2049 (June 21, 2018).
Under the Appointments Clause, only the President,
“Courts of Law, ” or “Heads of
Departments” can appoint “Officers of the United
States.” U.S. CONST. art. II, § 2, cl. 2. Because
none of those actors appointed the SEC ALJ in Lucia,
the Court found that the appointment violated the
Constitution and that the remedy was to have another ALJ hold
a new hearing. Lucia, 138 S.Ct. at 2055. It is not
disputed in this case that if Lucia applies and the
Lucia objection was not forfeited, the ALJ's
decision must be vacated.
of this district have recounted the cases applying
Lucia to find that other agencies' ALJs are
Officers of the United States rather than mere employees.
See Brunson v. Saul, Civ. No. 18-5562, 2019 WL
3413520, at *2 (E.D. Pa. July 26, 2019) (Strawbridge, M.J.)
(citing Bank of La. v. FDIC, 919 F.3d 916, 921 (5th
Cir. 2019) (FDIC); Jones Bros., Inc. v. Sec'y of
Labor, 898 F.3d 669, 679 (6th Cir. 2018) (Department of
Labor Federal Mine Safety and Health Review Commission);
Island Creek Coal Co. v. Wilkerson, 910 F.3d 254,
257 (6th Cir. 2018) (Department of Labor Benefits Review
Board)); Marchant v. Berryhill, Civ. No. 18-0345,
2019 WL 2268982, at *2 (E.D. Pa. May 28, 2019) (Kelly, J.)
(citing same and Assoc. Mortg. Bankers, Inc. v.
Carson, Civ. No. 17-0075, 2019 WL 108882 (D.D.C. Jan. 4,
2019) (Department of Housing and Urban Development);
Morris & Dickson Co. v. Whittaker, 360 F.Supp.3d
434 (W.D. La. 2018) (Drug Enforcement Agency)).
neither the Supreme Court nor the Third Circuit has
specifically determined that Social Security Administration
ALJs are Officers of the United States, following
Lucia, the President signed an executive order that
amended the process of future ALJ appointments to comply with
Article Two. Exec. Order No. 13, 843, 83 Fed. Reg. 32755
(July 10, 2018). “On July 16, 2019, the Acting
Commissioner [of Social Security] ratified the appointment of
ALJs . . . and approved their appointments as her own in
order to address any Appointments Clause questions involving
[Social Security Administration] claims.” Emergency
Message-18003 Rev 2 (available at
case presently before the court, as well as dozens of others
arising in our circuit, rather than arguing that
Lucia does not apply to Social Security ALJs,
Defendant takes the position that the claimant's failure
to present the Lucia claim to the Appeals Council
resulted in forfeiture of the claim. Doc. 15 at 4-13; Doc. 16
at 1-2. District courts have gone both ways on this issue.
Compare, e.g., Bizarre v.
Berryhill, 364 F.Supp.3d 418 (M.D. Pa. 2019) (Conner,
C.J.) (forfeiture not waived) with Marchant v.
Berryhill, Civ. No. 18-345, 2019 WL 2268982 (E.D. Pa.
May 28, 2019) (Kelly, J.) (forfeiture waived). This issue has
now been argued before the Third Circuit in Cirko
and Bizarre (C.A. Nos. 19-1772 and 19-1773, argument
held Nov. 13, 2019), and Defendant asks this court to stay
consideration of the issue pending the Third Circuit's
decision. Doc. 16. Plaintiff opposes the motion, arguing that
the potential harm to Plaintiff if the court grants the stay
outweighs the potential harm to Defendant if the court denies
the stay. Doc. 18.
to stay litigation is a matter left to a court's
discretion. See Bechtel Corp. v. Laborers' Int'l
Union, 544 F.2d 1207, 1215 (3d Cir. 1976). The power to
stay proceedings “calls for the exercise of judgment,
which must weigh competing interests and maintain an even
balance.” Cheyney State Coll. Faculty v.
Hufstedler, 703 F.2d 732, 737-38 (3d Cir. 1983) (quoting
Landis v. North Am. Co., 299 U.S. 248, 254, 55
(1936)). Because a stay “is an extraordinary measure .
. . [it] should only be granted in ‘exceptional
circumstances.” In re Chickie's &
Pete's Wage & Hour Litig., Civ. No. 12-6820,
2013 WL 2434611, at *2 (E.D. Pa. June 5, 2013) (quoting
J.B. Hunt Transp., Inc. v. Liverpool Trucking Co.,
Civ. No. 11-1751, 2012 WL 2050923, at *4 (E.D. Pa. June 7,
2012) (citing Colo. River Water Conserv'n Dist. v.
United States, 424 U.S. 800, 813 (1976)). In determining
whether to grant a stay, the court must consider
“whether the proposed stay would prejudice the
non-moving party, whether the proponent of the stay would
suffer a hardship or inequity if forced to proceed and
whether granting the stay would further the interest of
judicial economy.” Airgas, Inc. v. Cravath, Swaine
& Moore LLP, Civ. No. 10-612, 2010 WL 624955, at *3
(E.D. Pa. Feb. 22, 2010) (citing Landis, 299 U.S. at
opposing the motion to stay, Plaintiff focusses primarily on
the harm further delay will cause her as an
“impoverished individual.” Doc. 18 at 3. A number
of my colleagues have found this argument persuasive and
rejected the Commissioner's stay motions. See,
e.g., Harvin v. Comm'r of Soc. Sec.,
Civ. No. 18-5340, 2019 WL 5390654, at *3 (E.D. Pa. Oct. 22,
2019) (Heffley, M.J.) (“a stay in the numerous pending
cases raising the Appointments Clause issue is not warranted
because it threatens to cause undue delay and hardship to
claimants while it would not serve judicial efficiency
because it would create a backlog of stayed Social Security
cases for the Court, thus threatening even further
delay”). However, I cannot ignore the current
procedural reality. The Third Circuit has heard argument in
the consolidated appeal of Cirko and
Bizarre. Moreover, in nearly every case in which our
district court remanded a social security appeal solely on
the Lucia issue, the Commissioner has appealed, and
in every one of those appeals the Third Circuit has granted
the Commissioner's motion to hold the appeal in abeyance
pending the issuance of the mandate in Cirko and
Bizarre. See, e.g., Culclasure
v. Comm'r of Soc. Sec., 375 F.Supp.3d 559 (E.D. Pa.
2019) (C.A. 19-2386 - appeal filed June 17, 2019, stay order
entered July 23, 2019); Perez v. Comm'r of Soc.
Sec., Civ. No. 18-1907, ECF Doc. 21 (E.D. Pa. Apr. 23,
2019) (C.A. 19-2428 - appeal filed June 20, 2019, stay order
entered July 25, 2019); Ready v. Berryhill, Civ. No.
18-4289, 2019 WL 1934874 (E.D.Pa. April 30, 2019) (C.A.
19-2519 - appeal filed June 28, 2019, stay order entered July
26, 2019); Wilson v. Berryhill, 379 F.Supp.3d 381
(E.D. Pa.) (C.A. 19-2639 - appeal filed July 19, 2019, stay
order entered Sept. 17, 2019); Kellett v. Berryhill,
Civ. No. 18-4757, 2019 WL 2339968 (E.D. Pa. June 3, 2019)
(C.A. 19-2795 - appeal filed Aug. 9, 2019, stay order entered
Aug. 30, 2019); Brunson v. Saul, Civ. No. 18-5562,
2019 WL 3413520 (E.D. Pa. June 26, 2019) (C.A. 19-3205 -
appeal filed Sept. 26, 2019, stay order entered Oct. 10,
2019); McWilliams v. Berryhill, Civ. No. 18-5180,
2019 WL 2615750 (E.D.Pa. June 26, 2019) (C.A. 19-2965 -
appeal filed Aug. 23, 2019, stay order entered Sept. 17,
2019); Powell v. Saul, Civ. No. 18-4881, 2019 WL
3458662 (E.D. Pa. July 30, 2019) (C.A. 19-3215 - appeal filed
Sept. 27, 2019, stay order entered Oct. 10, 2019);
Wojciechowski v. Saul, Civ. No. 18-3843, 2019 WL
3458458 (E.D. Pa. July 30, 2019) (C.A. 19-3218 - appeal filed
Oct. 1, 2019, stay order entered Oct. 10, 2019); Robinson
v. Saul, Civ. No. 19-057, 2019 WL 4077643 (E.D. Pa. Aug.
28, 2019) (C.A. 19-3482 - appeal filed October 24, 2019, stay
order entered Nov. 21, 2019);but see Hill v. Saul,
Civ. No. 18-5564, 2019 WL 3573499 (E.D. Pa. Aug. 6, 2019) (no
appeal taken from remand on Lucia grounds);
Risser v. Berryhill, Civ. No. 18-4758, 2019 WL
3676349 (E.D. Pa. Aug. 6, 2019) (same).
light of the above, it appears that a stay is inevitable as
we await a decision in Cirko and Bizarre,
and the real question is whether the case is stayed here or
in the Circuit Court. See, e.g.,
Pisacano v. Comm'r of Soc. Sec., Civ. No.
18-3182, Doc. 16 (E.D. Pa. July 2, 2019) (granting stay
motion in light of the pending Cirko and
Bizarre appeal); Marchant v. Berryhill,
Civ. No. 18-345, Doc. 38 (E.D. Pa. Sept. 11, 2019) (same). I
conclude that judicial economy favors the issuance of such a
stay in this forum, avoiding the legal machinations of an
appeal, the filing of a stay motion, and remand by the
circuit court in light ...