Opinion
1:18-cv-12850-NLH
12-15-2020
ANDREA LAND, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
APPEARANCES: THOMAS J. GIORDANO, JR DISABILITY JUSTICE 200F MARKET ST SUITE 350 PHILADELPHIA, PA 19103 On behalf of Plaintiff ANNE VON SCHEVEN SOCIAL SECURITY ADMINISTRATION OFFICE OF THE GENERAL COUNSEL 300 SPRING GARDEN STREET 6TH FLOOR PHILADELPHIA, PA 19123 On behalf of Defendant
MEMORANDUM OPINION & ORDER
APPEARANCES:
THOMAS J. GIORDANO, JR
DISABILITY JUSTICE
200F MARKET ST
SUITE 350
PHILADELPHIA, PA 19103
On behalf of Plaintiff ANNE VON SCHEVEN
SOCIAL SECURITY ADMINISTRATION
OFFICE OF THE GENERAL COUNSEL
300 SPRING GARDEN STREET
6TH FLOOR
PHILADELPHIA, PA 19123
On behalf of Defendant HILLMAN , District Judge
WHEREAS, this matter comes before the Court pursuant to Section 205(g) of the Social Security Act, as amended, 42 U.S.C. § 405(g), regarding Defendant's denial of Plaintiff's application for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act, 42 U.S.C. § 423, et seq.; and
WHEREAS, on June 21, 2018, in Lucia v. SEC, 138 S. Ct. 2044 (2018), the U.S. Supreme Court held that Securities and Exchange Commission administrative law judges (ALJs) are inferior officers under the Constitution's Appointments Clause, and one of Plaintiff's bases for appeal is that the ALJ who heard his case before the Agency was not properly appointed under the Appointments Clause and that he is therefore entitled to remand to a properly appointed ALJ; and
WHEREAS, even though Plaintiff did not raise this challenge at the administrative level (hereinafter referred to as a "Lucia challenge"), on January 23, 2020, the Third Circuit Court of Appeals held in Cirko v. Commissioner of Social Security, 948 F.3d 148 (3d Cir. 2020) that a Social Security litigant need not administratively exhaust an Appointments Clause claim before raising it in federal court; and
On March 26, 2020, the Third Circuit denied Defendant's petition for a rehearing en banc. As set forth below, Defendant did not seek further review of the Third Circuit's decision in Cirko.
WHEREAS, after the Third Circuit issued its decision in Cirko, Defendant represented in a "status update" the following:
The Chief Judge for the District of New Jersey had entered a stay order in all pending social security appeal cases that asserted a Lucia challenge pending the Third Circuit's decision in Cirko. (Docket No. 23.) Once the Third Circuit issued its decision, the stay was lifted. (Docket No. 25.) --------
After conferring with the Department of Justice and the Solicitor General, the Commissioner has determined that it will not seek Supreme Court review of the Third Circuit's Cirko decision.(Docket No. 26);
The Commissioner does not contend that Cirko does not apply to this case.
THEREFORE,
IT IS on this 15th day of December, 2020
ORDERED that within 15 days of today, Defendant shall show cause as to why pursuant to Cirko v. Commissioner of Social Security, 948 F.3d 148 (3d Cir. 2020) the ALJ's decision should not be reversed and the matter remanded for a new hearing before a properly appointed ALJ under the Appointments Clause.
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J. At Camden, New Jersey