(Id. at 27.) Regardless of the mootness issue, Claimant's argument is foreclosed by Dahle v. Kijakazi, 62 F.4th 424 (8th Cir. 2023), cert. denied Dahle v. O'Malley, 144 S.Ct. 549 (2024).
(Doc. 10 at 34-43.) This argument is foreclosed by Dahle v. Kijakazi, 62 F.4th 424 (8th Cir. 2023), cert. denied Dahle v. O'Malley, 144 S.Ct. 549 (2024). In Dahle, the Eight Circuit, unequivocally rejected Claimant's argument, concluding that “Berryhill was properly serving as Acting Commissioner when she ratified the appointment of the SSA ALJs.” Id.
See Dahle v. Kijakazi, 62 F.4th 424, 427 (8th Cir. 2023), cert. denied sub nom. Dahle v. O'Malley, 144 S.Ct. 549 (2024) (“Subsection 2 can act as a tolling provision to subsection 1. But it also provides an independent period of time for an individual to serve as an acting officer.” and “Berryhill was properly serving as Acting Commissioner when she ratified the appointment of the SSA ALJs.”)
Second, whether the ALJ erred by not including an absenteeism limitation in determining Plaintiff's capacity for work. Third, whether the ALJ was constitutionally appointed, but Plaintiff acknowledges this issue is foreclosed by Dahle v. Kijakazi, 62 F.4th 424 (8th Cir. 2023), cert. denied sub nom. Dahle v. O'Malley, 144 S.Ct. 549 (2024). Defendant opposes Plaintiff's motion and asks the Court to affirm the final decision.
Rush v. Kijakazi, 65 F.4th 114 (4th Cir. 2023), cert denied sub nom. Rush v. O'Malley, No. 23-243, 2024 WL 674707 (U.S. Feb. 20, 2024); Seago v. O'Malley, 91 F.4th 386 (5th Cir. 2024); Dahle v. Kijakazi, 62 F.4th 424 (8th Cir. 2023), cert denied sub nom. Dahle v. O'Malley, 144 S.Ct. 549 (2024). In addition, numerous district courts in the Sixth Circuit and other circuits have reached the same conclusion.
We observe, as have other Circuits, that "[n]othing in SW General forecloses the possibility that in addition to operating as a tolling provision, § 3346(a)(2) allows another independent period of acting service if a nomination is submitted after (a)(1)'s 210-day period." Rush v. Kijakazi, 65 F.4th 114, 122 (4th Cir. 2023), cert. denied sub nom. Rush v. O'Malley, 144 S.Ct. 999 (2024); see also Dahle v. Kijakazi, 62 F.4th 424, 428 (8th Cir. 2023), cert. denied sub nom. Dahle v. O'Malley, 144 S.Ct. 549 (2024). Berryhill began serving as acting Commissioner a second time when President Trump submitted his first nomination for that position.
Brian T.D. v. Kijakazi, 580 F.Supp.3d 615, 635-36 (D. Minn. 2022), rev'd and remanded sub nom. Dahle v. Kijakazi, 62 F.4th 424 (8th Cir. 2023), cert. denied sub nom. Dahle v. O'Malley, 144 S.Ct. 549, 217 L.Ed.2d 293 (2024).
Dahle v. Kijakazi, 62 F.4th 424, 429 (8th Cir. 2023), cert. denied sub nom. Dahle v. O'Malley, 144 S.Ct. 549, 217 L.Ed.2d 293 (2024); see also SSR 19-1P, 2019 WL 1324866, *2 (Mar. 15, 2019).
Moreover, although the United States Court of Appeals for the Second Circuit does not appear to have expressly addressed the issue, the United States Courts of Appeals for the Fourth, Fifth, and Eighth Circuits have held that Ms. Berryhill was properly serving as Acting Commissioner of the Social Security Administration during the period relevant here. See Rush v. Kijakazi, 65 F.4th 114, 124 (4th Cir. 2023), cert. denied sub nom. Rush v. O'Malley, 144 S.Ct. 999 (2024); Seago v. O'Malley, 91 F.4th 386, 393 (5th Cir. 2024); Dahle v. Kijakazi, 62 F.4th 424, 429 (8th Cir. 2023), cert. denied sub nom. Dahle v. O'Malley, 144 S.Ct. 549 (2024); see also Gaiambrone v. Comm'r of Soc. Sec., No. 23-2988, 2024 WL 3518305, at *3 (3d Cir. July 24, 2024) (not precedential). The Court agrees with the weight of authority concluding that Ms. Berryhill was properly serving as Acting Commissioner of the Social Security Administration during the relevant period, which authority is grounded in the statutory text of the FVRA.
These opinions, although they discuss this issue quite thoroughly, are not controlling. Further, as Defendant emphasizes, these cases are no longer good law following the decision in Dahle v. Kijakazi, 62 F.4th 424 (8th Cir. 2023), cert. denied sub nom. Dahle v. O'Malley, 144 S.Ct. 549, 217 L.Ed.2d 293 (2024). Notably, Plaintiff's brief was filed January 2, 2023, which was after the issuance of the two district court cases in Brian and Richard in 2022, and before the Eight Circuit's decision in Dahie on March 7, 2023.