Brian T. D. v. Kijakazi

• Decision Date: 20 January 2022
• Docket Number: Case No. 19-cv-2542 (DTS)
• Citation: 580 F.Supp.3d 615
• Parties: BRIAN T. D., Claimant, v. Kilolo KIJAKAZI, Acting Commissioner of Social Security, Defendant.
• Court: U.S. District Court — District of Minnesota

580 F.Supp.3d 615

BRIAN T. D., Claimant,

v.Kilolo KIJAKAZI, Acting Commissioner of Social Security, Defendant.

Case No. 19-cv-2542 (DTS)

United States District Court, D. Minnesota.

Signed January 20, 2022

David L. Christianson, Christianson Law, Mahesha Padmanabhan Subbaraman, Subbaraman PLLC, Minneapolis, MN, Wes Kappelman, Pro Hac Vice, Kappelman Law Firm, Ames, IA, for Claimant.

Ann M. Bildtsen, Quinn Hochhalter, United States Attorney's Office, Minneapolis, MN, Chetan Patil, Pro Hac Vice, DOJ-Civ, Federal Programs Branch, Washington, DC, Elvi Jenkins, Michael Moss, SSA, Office of the General Counsel, Dallas, TX, for Defendant.

ORDER

DAVID T. SCHULTZ, United States Magistrate Judge

INTRODUCTION

Claimant Brian T. D. brings this action contesting the denial of his application for disability insurance benefits. He asserts the Administrative Law Judge (ALJ) who decided his claim erred on the merits and lacked the authority to decide it in any event. For the reasons set forth below, the Court finds that because the ALJ was not constitutionally appointed she lacked the authority to decide Claimant's matter. The Court therefore grants Claimant's summary judgment motion, vacates the ALJ's decision, and remands the matter for decision by a properly appointed ALJ.

BACKGROUND

This matter raises complex questions of statutory and constitutional interpretation arising in a protracted and convoluted procedural history. Consequently, considerable background information is necessary for a full understanding of the Court's decision. That background properly begins with a brief summary of the history surrounding the adoption of the United States Constitution's Appointments Clause and the enactment of the Federal Vacancies Reform Act (FVRA).

I. The Appointments Clause & The Federal Vacancies Reform Act

A. The Appointments Clause

Under the Constitution, the President is responsible for the conduct of the Executive Branch and may not delegate that responsibility or the accompanying obligation to supervise that conduct. United States v. Arthrex, Inc. , ––– U.S. ––––, 141 S. Ct. 1970, 1978-79, 210 L.Ed.2d 268 (2021). However, the Framers of the Constitution also understood that the President would necessarily have to rely upon subordinate officers to assist with carrying out the responsibilities entrusted to the Executive. Id. at 1979. The Appointments Clause, Article II, Section 2, Clause 2 of the Constitution provides the exclusive process by which the President may appoint "officers of the United States", including those exercising powers of the Executive Branch:

[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law; but the Congress may by Law vest the Appointment of such inferior Officers, as they may think proper, in the President alone ....

U.S. Const. art. II, § 2, cl. 2.

Thus, the Appointments Clause divides officers into two classes—principal officers and inferior officers. United States v. Germaine , 99 U.S. 508, 509-511, 25 L.Ed. 482 (1879). Principal officers must be appointed by the President with the advice and consent of the Senate. Arthrex, Inc. , 141 S. Ct. at 1979. These appointments are commonly referred to as PAS appointments. N.L.R.B. v. SW General, Inc. , 580 U.S. 288, 137 S. Ct. 929, 934, 197 L.Ed.2d 263 (2017). Inferior officers are appointed in the same manner unless Congress "by Law" authorizes the President, a court of law, or the head of a department to appoint particular inferior officers without the advice and consent of the Senate. Edmond v. United States , 520 U.S. 651, 660, 117 S.Ct. 1573, 137 L.Ed.2d 917 (1997).

At a time when "the power of appointment to offices was deemed the most insidious and powerful weapon of eighteenth century despotism," the Framers limited the appointment power to ensure accountability to political force and the people's will. Freytag v. Comm'r of Internal Revenue , 501 U.S. 868, 883-84, 111 S.Ct. 2631, 115 L.Ed.2d 764 (1991). Officers exercising Executive power are accountable "to the public through a clear and effective chain of command down from the President" pursuant to the Constitution's Appointments Clause. Arthrex , 141 S. Ct. at 1979 (quotation omitted).

The Appointments Clause serves as a guard against one branch aggrandizing its power at the expense of another branch and preserves constitutional integrity by preventing the diffusion of appointment power. Freytag , 501 U.S. at 878, 111 S.Ct. 2631. Assigning the nomination power to the President guarantees accountability for the appointee's actions because the "blame of a bad nomination would fall upon the president singly and absolutely." Arthrex , 141 S. Ct. at 1979 (quotation omitted). The Appointments Clause adds a degree of accountability in the Senate, which shares in the public blame "for both the making of a bad appointment and the rejection of a good one." Id. (quoting Edmond , 520 U.S. at 660, 117 S.Ct. 1573 ). The Senate's advice and consent power is thus a critical structural safeguard and serves as a "check upon a spirit of favoritism in the President and a guard against the appointment of unfit characters ... from family connection, from personal attachment, or from a view to popularity." N.L.R.B. , 137 S. Ct. at 935 (quotations omitted). Requiring the Senate's advice and consent is also meant to "promote a judicious choice of persons for filling the offices of the union." Edmond , 520 U.S. at 659, 117 S.Ct. 1573 (quotation and alteration omitted).

B. Vacancies

Because the PAS-appointment process may leave a PAS office vacant for a time, the Appointments Clause authorizes the President to "fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session." U.S. Const. art. II, § 2, cl. 3. Even so, not all vacancies occur during the recess of the Senate and the ordinary process of Senate confirmation, even while in session, may necessarily leave a PAS appointment vacant for a considerable period. As a result, Congress has historically given the President limited authority to appoint officials to temporarily perform the functions of the vacant PAS office without Senate approval. N.L.R.B. , 137 S. Ct. at 935. In 1792, Congress authorized the President to appoint "any person or persons" to fill specific vacancies in the Departments of State, Treasury, and War. Id. (citing Act of May 8, 1792, ch. 37, § 8, 1 Stat. 281). Congress initially allowed those acting officers to serve until a permanent officeholder was in place, but later limited the acting service to six months. Id. (citing Act of Feb. 13, 1795, ch. 21, 1 Stat. 415).

In 1868, Congress passed the Vacancies Act to expand the number of PAS offices the President could fill with acting officers. Id. (citing Act of July 23, 1868, ch. 227, 15 Stat. 168; Act of Feb. 20, 1863, ch. 45, 12 Stat. 656). The Vacancies Act constrained the authority to appoint "any person or persons" to a default rule that the "first or sole assistant ... shall" perform the functions of the vacant office, with an exception allowing the President to appoint someone already serving in another PAS office. Id. The Vacancies Act also reduced the allowable acting service from six months, generally authorizing only ten days of acting service. Id. Congress later allowed acting service for 30 days. Id. (citing Act of Feb. 6, 1891, ch. 113, 26 Stat. 733).

In the 1970s and 1980s, conflict over the Vacancies Act arose between the Executive Branch's Department of Justice and the Legislative Branch's Comptroller General. Id. The branches disagreed on whether the head of an Executive agency had independent authority apart from the Vacancies Act to temporarily fill vacant offices. Id. Congress amended the Vacancies Act to clarify that the Act applies to such agencies. Id. at 936. In the amendment Congress also lengthened the period of allowable acting service to 120 days and added a provision that suspended the running of the 120 days during the period a Presidential nomination was pending Senate confirmation. Id.

C. The Federal Vacancies Reform Act

"By 1998, approximately 20 percent of PAS offices in Executive agencies were occupied by temporary designees, most of whom had served beyond the 120-day limitation period[.] ... Perceiving a threat to the Senate's advice and consent power, [Congress] replaced the Vacancies Act with the FVRA." Id. (quotation omitted). The FVRA's purpose is "to create a clear and exclusive process to govern the performance of duties of offices in the Executive Branch" that are filled through the PAS process. S. Rep. 1, No. 105-250, 105th Cong., 2nd Sess. 1998, 1998 WL 404532 (July 15, 1998) (herein "Senate Report"). The FVRA provides that if an Executive agency's PAS officer dies, resigns, or is otherwise unable to perform the functions and duties of the office, the first assistant to that office "shall" perform those functions and duties. 5 U.S.C. § 3345(a)(1). The President may choose to appoint a different person who meets certain criteria to perform those functions and duties. 5 U.S.C. § 3345(a)(2)-(3). The acting officer may temporarily perform "any function or duty of the applicable office" established by statute or regulation and required to be performed by the applicable officer. Id. §§ 3345(a)(1)-(3), 3348(a). The FVRA limits a person's service as an acting officer, stating the person serving in that capacity may serve:

(1) for no longer than 210 days beginning on the date the vacancy occurs; or (2) ... once a first or second nomination for the office is submitted to the Senate, from the date of such nomination for the period that the nomination is pending in the Senate.

Id. § 3346(a). Sections 3345 and 3346 are the exclusive means...