United States District Court, W.D. Tennessee, Western Division
CHARMIANE G. CLAXTON UNITED STATES MAGISTRATE JUDGE
instant case, Plaintiff seeks reversal or remand of this
action pursuant to Lucia v. SEC, 138 S.Ct. 2044
(2018) and Jones Brothers, Inc. v. Sec'y of
Labor, No. 17-3483 (6th Cir. July 31, 2018). (D.E. # 31)
Plaintiff asserts that Lucia and Jones
Brothers necessitate such a remedy for all cases decided
by an Administrative Law Judge (“ALJ”) who was
not properly appointed under the Appointments Clause of the
United States Constitution, see U.S. Const. art. II,
§ 2, cl. 2.
addition to Lucia and Jones Bros.,
Plaintiff further relies upon the recent decisions issued by
the United States District Court for the Middle District of
Pennsylvania in Bizarre v. Berryhill, 364 F.Supp.3d
418 (M.D. Penn. 2019) and Andrew M. Cirko o/b/o Sandra L.
Cirko v. Berryhill, Case No. 1:17-cv-0680, 2019 WL
1014195, (M.D. Pa. Mar. 4, 2019). In Bizarre and
Cirko, United States District Court Chief Judge
Christopher C. Conner concluded that the claimant was not
required to raise his or her constitutional claim before the
ALJ or the Appeals Council to preserve it before the District
Court. Thus, Petitioner asserts that he has timely raised the
issue in this Court.
Commissioner does not dispute that the ALJ in this case was
not appointed in accordance with the Appointments Clause and
concurs with Petitioner that the key dispute herein is the
timeliness of raising the Appointments Clause objection, as
Petitioner did not raise it at the administrative level. The
Commissioner asserts that, notwithstanding the
Bizarre and Cirko opinions from the Western
District of Pennsylvania, thirty-two of thirty-three district
courts that have decided this issue have rejected attacks on
the validity of an SSA ALJ's appointment where the
claimant failed to make a constitutional challenge at the
administrative level. (See Commissioner's Brief,
filed at (D.E. # 25) (citing cases)); see also
Bizarre, 364 F.Supp.3d at 420 (acknowledging that the
Bizarre court's analysis “breaks from the
emerging consensus of federal courts to address this
district courts that have rejected these attacks thus far
include this Court and all but one other court within the
Sixth Circuit. See Vickie Gilbert v. Comm'r of
Soc. Sec., No. 3:18CV2026, 2019 WL 2281247, at *1-2
(N.D. Ohio Apr. 3, 2019); Joseph A. Fortin v.
Comm'r of Soc. Sec., 372 F.Supp.3d 558,
562-69 (Mar. 29, 2019); Michael John Shoops v. Comm'r
of Soc. Sec., No. 18-cv-10444, 2019 WL 1417164, at *1-2
(E.D. Mich. Mar. 29, 2019); Joyce Ramsey v. Nancy
Berryhill, No. 17;13713, 2019 WL 1397241, at *1-3 (E.D.
Mich. Mar. 28, 2019); Lori Van Andel v. Comm'r of
Soc. Sec., No. 1:17-cv-1021, 2019 WL 1375339, at *3
(W.D. Mich. Mar. 27, 2019); Karen Bocks v. Comm'r of
Soc. Sec., No. 1:17-cv-988, 2019 WL 1416866, at *4-5
(W.D. Mich. Mar. 29, 2019); Samuel Showerman v.
Comm'r of Soc. Sec., No. 1:18-cv-61, 2019 WL
1375341, at *2-3 (W.D. Mich. Mar. 27, 2019): Anthony
Hutchins v. Nancy A. Berryhill, 376 F.Supp.3d 775,
777-79 (E.D. Mich. 2019); Patrick Foster v. Comm'r of
Soc. Sec., No. 1:18-cv-478, 2019 WL 1324008, at *4 (W.D.
Mich. Mar. 25, 2019) (Report and Recommendation); Travis
Hodges v. Comm'r of Soc. Sec., No. 1:18-cv-394, 2019
WL 1330847, at *1-4 (S.D. Ohio Mar. 25, 2019) (Report and
Recommendation); Thomas Martin Mullins v. Nancy A.
Berryhill, No. 7:18-cv-002-JMH, 2019 WL 1339588, at *2-3
(E.D. Ky. Mar. 25, 2019); Susan Flack v. Comm'r of
Soc. Sec., No. 2:18-cv-501, 2019 WL 1236097, at *1-2
(S.D. Ohio Mar. 18, 2019); Mary Wreede v. Comm'r of
Soc. Sec., No. 3:18CV164, 2019 WL 1324024, at *2-4 (S.D.
Ohio Mar. 18, 2019); Kimberly Pittman Fitzgerald v. Nancy
A. Berryhill, No. 1:17-CV-00144-GNS-llk, 2019 WL
1125666, at *2-4 (W.D. Ky. Mar. 12, 2019); Rick Axley v.
Comm'r of Soc. Sec., No. 1:18-cv-1106-STA-cgc, 2019
WL 489998, at *1-2 (W.D. Tenn. Feb. 7, 2019); Alicia D.
Willis v. Comm'r of Soc. Sec., No. 1:18-cv-158, 2018
WL 6831066, at *2-4 (S.D. Ohio Dec. 6, 2018); Douglas
Faulkner v. Comm'r of Soc. Sec., No.
1:17-cv-01197-STA-egb, at *1-3 (W.D. Tenn. Nov. 19, 2018);
Helena Pugh v. Comm'r of Soc. Sec., No.
16;12057, 2019 WL 7572831, at *1 (W.D. Mich. Nov. 8, 2018)
(Report and Berryhill, 368 F.Supp.3d 1110, 1111-12
(E.D. Ky. Oct. 18, 2018); Kim Marie Davidson v.
Comm'r of Soc. Sec., No. 2:16-cv-00102, 2018 WL
4680327, at *1-2 (M.D. Tenn. Sept. 28, 2018).
review, in Lucia, the Supreme Court stated that
“‘one who makes a timely challenge to the
constitutional validity of the appointment of an officer who
adjudicates his case' is entitled to relief.”
Lucia, 138 S.Ct. at 2055 (quoting Ryder v.
United States, 515 U.S. 177, 182-83 (1995). The
Lucia court noted that claimant had made “just
such a timely challenge, ” as he had raised his
Appointments Clause objection before the Securities and
Exchange Commission and had reasserted it throughout his
appeals. Thus, Lucia was remanded for rehearing
before a new, constitutionally appointed ALJ.
forth above, this Court, the unanimous decisions of district
courts within our Circuit, and the overwhelming majority of
the courts that have considered this question have held that
a “timely challenge” of an ALJ's authority
must occur at the administrative level. Thus, these courts
have not permitted remand for a hearing before a
constitutionally appointed ALJ or reversals of the case for
an award of benefits on the basis of an Appointments Clause
violation. Although the Bizarre and Cirko
courts reason that remand is appropriate even if the issue
were not raised at the administrative level, this Court finds
it more persuasive to follow the analysis already developed
in our Court and our Circuit that the issue must be raised
below to be timely.
Petitioner's request for reversal or remand pursuant to
Lucia and Jones Brothers based upon the
constitutionality of the ALJ's appointment is hereby
DENIED. The matter has been set for hearing on the merits on
August 29, 2019.
IS SO ORDERED
 While Plaintiff asserts that either
reversal and payment of benefits or remand for a new hearing
by a constitutionally appointed ALJ are the appropriate
remedies, he also relies upon the reasoning in Jones
Brothers that recognizes that ALJs have no power to take
action on Appointments Clause objections and that the Social
Security Administration explicitly instructed them not to do
so post-Lucia. Thus, Petitioner urges this Court to
utilize its independent power to consider this constitutional
question-even if it had not been raised before the
 The Commissioner notes that there is a
split of authority within the United States District Court
for the Eastern District of North Carolina.
 Neither this Court nor the parties
have found any district court Order or Report and
Recommendation within the Sixth Circuit that has held to the
contrary. The only district that appears not to have issued a
decision on this question is the United States ...