Amici Brief: Willie Earl Carr, et al. v. Andrew M. Saul, Commissioner of Social Security; John J. Davis, et al. v. Andrew M. Saul, Commissioner of Social Security

AMICI BRIEF SUMMARY

The case concerned whether claimants seeking disability benefits under the Social Security Act had to “exhaust” constitutional challenges to their benefits determinations before an Administrative Law Judge (ALJ) at the Social Security Administration in order to obtain judicial review on that issue on later appeal in federal court.

Specifically, the Petitioners did not challenge the constitutionality of their ALJs’ appointments during their respective ALJ hearings, but they each raised a constitutional challenge on appeal in district court. The Eighth and Tenth U.S. Circuit Courts of Appeals closed the courthouse doors on the Petitioners’ Appointments Clause challenges, ruling that “issue exhaustion” precluded a challenge that was not first raised before the ALJ.

In January 2021, NCLA and the Cato Institute filed a joint amicus brief arguing that imposing issue exhaustion requirements is inappropriate when the issue does not depend on an agency’s discretion, expertise, or fact-finding.

In a win for NCLA, on April 22, 2021, the U.S. Supreme Court unanimously held that the lower courts erred in imposing an issue-exhaustion requirement on Social Security disability claimants. In Carr v. Saul, claimants challenged a judge-made version of the administrative exhaustion rule requiring that litigants at an administrative hearing raise any legal arguments in support of their claim at each step of the administrative process or forfeit those arguments on appeal.

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CASE: Willie Earl Carr, et al. v. Andrew M. Saul, Commissioner of Social Security; John J. Davis, et al. v. Andrew M. Saul, Commissioner of Social Security

COURT: U.S. Supreme Court

DOCUMENT: Nos. 19-1442, 20-105

COUNSEL FOR AMICI CURIAE: Jared McClain, Mark Chenoweth, Richard Samp

FILED: January 4, 2021

CASE DOCUMENTS

April 22, 2021 | Opinion of the U.S. Supreme Court
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March 3, 2021 | Supreme Court Oral Argument in Carr v. Saul
Click here to listen.
January 4, 2021 | Amici Curiae Brief of the New Civil Liberties Alliance & Cato Institute in Support of Petitioners
Click here to read the full document.

PRESS RELEASES

April 22, 2021 | In Victory for NCLA, Supreme Court Unanimously Rejects “Issue Exhaustion” Requirement before ALJ

Washington, DC (April 22, 2021) – Today, the U.S. Supreme Court unanimously held that the lower courts erred in imposing an issue-exhaustion requirement on Social Security disability claimants. In Carr v. Saul, claimants challenged a judge-made version of the administrative exhaustion rule, a requirement that litigants at an administrative hearing must raise any legal arguments in support of their claim at each step of the administrative process or forfeit those arguments on appeal. The New Civil Liberties Alliance and the Cato Institute filed a joint amicus brief arguing that imposing issue exhaustion requirements is inappropriate when the issue does not depend on an agency’s discretion, expertise, or fact-finding.

In the Social Security system, claimants dissatisfied with initial determinations on their applications for disability benefits can request further review from a Social Security administrative law judge (ALJ), and then from the Appeals Council. After that, claimants proceed to the district court. In Sims v. Apfel, the Supreme Court held that Social Security claimants need not raise particular issues before the Appeals Council to preserve those issues for judicial review. But Sims left open whether an issue-exhaustion rule might apply to proceedings before ALJs.

In Justice Sotomayor’s opinion for the Court, the judgments of the Eighth and Tenth Circuit Courts of Appeal were reversed under the reasoning that petitioners could not have developed their Appointments Clause challenges in the Social Security Administration (SSA) ALJ proceedings given that: (1) the proceedings were non-adversarial; and (2)(a) the structural constitutional claims at issue were ill suited for agency adjudication because they fell outside the agency’s expertise; and (b) raising them would have been futile since the SSA ALJ could not have granted the claimants their requested relief.

Carr is one of several cases that arose in the aftermath of the Supreme Court’s 2018 decision in Lucia v. SEC, which held that the ALJs working for the Securities & Exchange Commission (SEC) were “Officers of the United States” who had not been appointed in a manner required by the Appointments Clause of the Constitution.

NCLA’s amicus briefs in Lucia and now Carr aim to ensure that agency adjudicators must afford people their constitutionally guaranteed rights. The Court’s decision in Carr makes certain that Article III courts will serve as a constitutional backstop and step in to enforce the Constitution when agencies can’t or won’t.

NCLA released the following statement:

“Just as NCLA argued in its amicus brief, the Court recognized today that it makes little sense to penalize litigants for failing to articulate constitutional challenges before ALJs who lack the expertise and authority to resolve such claims. This decision helps ensure that Article III judges will fulfill their constitutional duty to resolve structural challenges to agency adjudications when the agency can’t or won’t do so.”
— Jared McClain, Litigation Counsel, NCLA

For more information visit the case page here.

ABOUT NCLA

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

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January 4, 2021 | NCLA Discourages Supreme Court from Upholding “Issue Exhaustion” in Social Security Benefits Cases

Washington, DC (January 4, 2021) – The New Civil Liberties Alliance, a nonpartisan, nonprofit civil rights group, today filed a joint amicus curiae brief with the Cato Institute in the U.S. Supreme Court in the consolidated cases of Willie Earl Carr, et al. v. Andrew M. Saul, Commissioner of Social Security and John J. Davis, et al. v. Andrew M. Saul, Commissioner of Social Security. The case concerns whether claimants seeking disability benefits under the Social Security Act must “exhaust” constitutional challenges to their benefits determinations before an Administrative Law Judge (ALJ) at the Social Security Administration (“SSA”) in order to obtain judicial review on that issue on later appeal in federal court.

Specifically, the Petitioners did not challenge the constitutionality of their ALJs’ appointments during their respective ALJ hearings, but they each raised a constitutional challenge on appeal in district court. The Eighth and Tenth U.S. Circuit Courts of Appeals closed the courthouse doors on the Petitioners’ Appointments Clause challenges, ruling that “issue exhaustion” precluded a challenge that was not first raised before the ALJ.

In the Supreme Court’s June, 2018 decision in Lucia v. Securities and Exchange Commission (SEC), the court held that SEC judges were “officers of the United States” who must be appointed by the President or the Head of a Department in accordance with the Appointments Clause. In August 2018, in direct response to Lucia, the Head of SSA ratified the appointments of all Social Security ALJs (whom a lesser official had appointed).

No federal law prohibits Petitioners and similarly situated Social Security claimants from raising a claim in federal court that they did not first raise before a Social Security ALJ.The SSA nonetheless asks the Supreme Court to adopt a rule forfeiting claimants’ constitutional rights for “prudential” reasons. Like other prudential rules, judge-made exhaustion is supposed to promote judicial efficiency, provide courts and litigants the benefits of an agency’s expertise, and compile a record for judicial review. But lower courts’ refusal to consider Petitioners’ Appointments Clause claims did not advance any of those purposes.

The lower courts need clear guidance about when—or if—courts may decline to exercise their jurisdiction to decide legal issues that do not depend on an agency’s expertise, discretion, or fact-finding. NCLA and Cato’s joint brief asks the Supreme Court to reverse the courts of appeals and return these cases to the lower courts for consideration on the merits.

NCLA released the following statements: 

Judge-made exhaustion rules lead courts to abdicate their judicial responsibility by closing the courthouse doors to people with viable legal challenges to the structure and authority of administrative agencies. NCLA is asking the Supreme Court to ensure that the lower courts hear these cases on the merits and thereby fulfill their constitutional role as a check on administrative overreach. 

—Jared McClain, Litigation Counsel, NCLA 

“It makes no sense to find that a Social Security benefits applicant waives his right to raise constitutional claims in federal court if he fails to “exhaust” the claims by first raising them during administrative proceedings. The law encourages applicants to raise issues before an agency if the administrative law judge has some expertise on the issue; but Social Security ALJs have absolutely no expertise on constitutional law issues.”

—Richard Samp, Senior Litigation Counsel, NCLA 

ABOUT NCLA 

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

Download the full document

OPINION