PUBLISH 

UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

WILLIE EARL CARR, 

 Plaintiff - Appellee, 

v. 

COMMISSIONER, SSA, 

 Defendant - Appellant. 

––––––––––––––––––––––––––––––––––– 

KIM L. MINOR, 

 Plaintiff - Appellee, 

v. 

COMMISSIONER, SSA, 

 Defendant - Appellant.

No. 19-5079 

No. 19-5085 

_________________________________ 

Appeal from the United States District Court 

for the Northern District of Oklahoma 

(D.C. Nos. 4:18-CV-00272-FHM, 4:18-CV-00418-FHM)

_________________________________ 

Amanda L. Mundell, Attorney (Joseph H. Hunt, Assistant Attorney General; Mark B. 

Stern, Joshua M. Salzman, and Daniel Aguilar, Attorneys, on the briefs) United States 

Department of Justice, Washington, D.C. for Defendant - Appellant. 

Paul F. McTighe, Jr., Tulsa, Oklahoma for the Plaintiffs – Appellees. 

_________________________________ 

FILED

United States Court of Appeals

Tenth Circuit

June 15, 2020

Christopher M. Wolpert

Clerk of Court
2 

Before HARTZ, MATHESON, and CARSON, Circuit Judges. 

_________________________________ 

MATHESON, Circuit Judge. 

_________________________________ 

This appeal asks whether Social Security disability claimants waive Appointments 

Clause challenges that they failed to raise in their administrative proceedings. 

In separate claims, Willie Earl Carr and Kim L. Minor (“Appellees”) sought 

disability benefits from the Social Security Administration (“SSA”). In each case, the 

administrative law judge (“ALJ”) denied the claim, and the agency’s Appeals Council 

declined to review. 

In district court, Mr. Carr challenged the SSA’s denial of his claim for disability 

benefits. While his case was pending, the Supreme Court held that Securities and 

Exchange Commission (“SEC”) ALJs are “inferior officers” under the Appointments 

Clause, U.S. Const. art. II, § 2, cl. 2, and therefore must be appointed by the President, a 

court, or the head of the agency, Lucia v. S.E.C., 138 S. Ct. 2044, 2049 (2018). Shortly 

after, Ms. Minor also sued in district court challenging the denial of benefits in her case. 

In response to Lucia, the SSA Commissioner (“Commissioner”) appointed the 

SSA’s ALJs.1

 The Commissioner did so “[t]o address any Appointments Clause 

questions” Lucia posed. Effect of the Decision in Lucia v. Securities and Exchange 

1

 The SEC had only five ALJs when Lucia was decided. See Lucia, 138 S. Ct. at 

2049. The SSA has approximately 1,600. See SSA, FY 2021 Congressional 

Justification, 187-89 (2020), https://perma.cc/M3EJ-ZE23. 
3 

Commission (SEC) On Cases Pending at the Appeals Council (“Effect of Lucia”), 84 

Fed. Reg. 9582, 9583 (Mar. 15, 2019). After the Commissioner’s action, Mr. Carr and 

Ms. Minor each filed a supplemental brief, asserting for the first time that the ALJs who 

had rejected their claims had not been properly appointed under the Appointments 

Clause. 

The district court upheld the ALJs’ denials of the claims, but it agreed with the 

Appointments Clause challenges. The court vacated the SSA decisions and remanded for 

new hearings before constitutionally appointed ALJs. It held that Mr. Carr and Ms. 

Minor did not waive their Appointments Clause challenges by failing to raise them in 

their SSA proceedings. 

On appeal, the Commissioner argues that Appellees waived their Appointments 

Clause challenges by failing to exhaust them before the SSA. Exercising jurisdiction 

under 28 U.S.C. § 1291, we agree and reverse. 

I. BACKGROUND 

The following presents an overview of (A) SSA disability proceedings, (B) the 

Appointments Clause, and (C) the factual and procedural background in these cases. 

A. Social Security Administrative Procedure 

When a Social Security claimant seeks disability benefits, the SSA makes an 

“[i]nitial determination” regarding entitlement. 20 C.F.R. § 404.900(a)(1). Dissatisfied 

claimants may seek agency reconsideration. Id. § 404.900(a)(2). 
4 

A claimant who disagrees with the reconsidered determination may request a 

hearing before an SSA ALJ. Id. § 404.900(a)(3). An ALJ may (1) dismiss the request 

for a hearing, id. § 404.957, (2) remand for a revised determination, id. § 404.948(c), (3) 

issue a decision, id. § 404.948(a), or (4) hold a hearing and then issue a decision, id.

§ 404.953. “The issues before the [ALJ] include all the issues brought out in the initial, 

reconsidered or revised determination that were not decided entirely in [the claimant’s] 

favor,” id. § 404.946(a), as well as new issues the ALJ raises, id. § 404.946(b). 

Claimants must “notify the [ALJ] in writing at the earliest possible opportunity” if they 

“object to the issues to be decided at the hearing.” Id. § 404.939. 

A claimant may appeal an ALJ’s decision to the SSA Appeals Council (“Appeals 

Council”). Id. § 404.900(a)(4). If the Appeals Council affirms or declines to review, the 

claimant may sue in district court within 60 days. Id. § 404.900(a)(5); 42 U.S.C. 

§ 405(g). 

B. Appointments Clause 

The Appointments Clause provides: 

[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 think proper, in the President alone, in the Courts of 

Law, or in the Heads of Departments. 
5 

U.S. Const. art. II, § 2, cl. 2. “The Supreme Court has defined an officer generally as 

‘any appointee exercising significant authority pursuant to the laws of the United 

States.’” Bandimere v. S.E.C., 844 F.3d 1168, 1173 (10th Cir. 2016) (quoting Buckley v. 

Valeo, 424 U.S. 1, 126 (1976) (per curiam)). “The term ‘inferior officer’ connotes a 

relationship with some higher ranking officer or officers below the President: Whether 

one is an ‘inferior’ officer depends on whether he has a superior.” Id. (quotations 

omitted). Employees—or “lesser functionaries”—need not be appointed under the 

Appointments Clause. Id. at 1170, 1173 (quotations omitted). The Appointments Clause 

prevents the “diffusion of the appointment power,” Ryder v. United States, 515 U.S. 177, 

182 (1995), and “promotes public accountability by identifying the public officials who 

appoint officers,” Bandimere, 844 F.3d at 1172. 

In Lucia, the Supreme Court held that the SEC’s ALJs are inferior officers and 

must be appointed by the President, a court, or a head of agency department. 138 S. Ct. 

at 2049. Because the ALJ in Lucia had not been appointed in one of those ways, the 

Court vacated the agency’s decision that Mr. Lucia had violated the Investment Advisers 

Act, 15 U.S.C. § 80b–1 et seq., and remanded for a new hearing before a properly 

appointed ALJ. Id. at 2055-56. The Court did not address whether SSA ALJs are also 

inferior officers subject to Appointments Clause appointment. 

C. Factual and Procedural Background 

Mr. Carr and Ms. Minor separately sought disability benefits in 2014. ALJs heard 

and denied their claims in 2017. The Appeals Council declined to review both claims, 
6 

and they each sued in the Northern District of Oklahoma, contesting the ALJs’ decisions 

on the merits. 

After Mr. Carr’s suit was filed but before Ms. Minor’s, the Supreme Court decided 

Lucia. Several weeks later, the SSA Commissioner appointed the agency’s ALJs. See

Effect of Lucia, 84 Fed. Reg. at 9583. The SSA explained that although 

[t]he Supreme Court’s decision in Lucia did not specifically 

address the constitutional status of ALJs who work in other 

Federal agencies, including the [SSA,] [t]o address any 

Appointments Clause questions involving Social Security 

claims, and consistent with guidance from the Department of 

Justice, on July 16, 2018[,] the Acting Commissioner of 

Social Security ratified the appointments of our ALJs and 

approved those appointments as her own. 

Id. 

Mr. Carr and Ms. Minor each filed briefs in district court raising, for the first time, 

Appointments Clause challenges to the ALJs who denied their claims. The court upheld 

the ALJs’ decisions on the merits but remanded for new hearings before ALJs properly 

appointed under the Appointments Clause. Relying on Sims v. Apfel, 530 U.S. 103 

(2000), it concluded that the claimants did not waive their Appointments Clause claims 

by failing to raise them in their SSA proceedings. See Willie Earl C. v. Saul, No. 18-CV272-FHM, 2019 WL 2613819, at *5 (N.D. Okla. June 26, 2019); Kim L. M. v. Saul, No. 

18-CV-418-FHM, 2019 WL 3318112, at *6 (N.D. Okla. July 24, 2019). 

The Commissioner appealed as to both Mr. Carr and Ms. Minor. The appeals 

have been consolidated and were argued together to this panel. 
7 

II. DISCUSSION 

On appeal, the Commissioner “[does] not contest that [SSA] ALJs are inferior 

officers and that the ALJs had not been properly appointed” when they denied Appellees’ 

benefits claims. Aplt. Br. at 8. He argues only that the district court erred by holding that 

Appellees were not required to exhaust their Appointments Clause challenges in the 

administrative proceedings. The Commissioner does not argue that a statute or regulation 

requires issue exhaustion in the SSA context. He contends we should find such a 

requirement “even without relying on a specific statute or regulation.” Id. at 21. 

A. Standard of Review 

“We review a district court’s ruling reversing the Commissioner’s final decision 

de novo, applying the same standards as the district court.” Vallejo v. Berryhill, 849 F.3d 

951, 954 (10th Cir. 2017).2

 

2

 When a district court excuses (or declines to excuse) a plaintiff’s failure to 

exhaust, we review that decision for abuse of discretion. See, e.g., McGraw v. Prudential 

Ins. Co. of Am., 137 F.3d 1253, 1263 (10th Cir. 1998) (“We may disturb [a district 

court’s refusal to excuse failure to exhaust] only if it represents a clear abuse of 

discretion.”); Koch v. White, 744 F.3d 162, 164 (D.C. Cir. 2014) (“[T]he decision 

whether to excuse a failure to exhaust is reviewed for an abuse of discretion.”). The 

district court here did not excuse Appellees’ failure to exhaust. It held there is no 

exhaustion requirement for SSA Appointments Clause challenges, and it reversed the 

ALJs’ decisions. See Willie Earl C., 2019 WL 2613819, at *5; Kim L. M., 2019 WL 

3318112, at *6. 
8 

B. Additional Legal Background

Issue Exhaustion 

The Supreme Court “long has acknowledged the general rule that parties exhaust 

prescribed administrative remedies before seeking relief from the federal courts.” 

McCarthy v. Madigan, 503 U.S. 140, 144-45 (1992). Moreover, “[i]n most cases, an 

issue not presented to an administrative decisionmaker cannot be argued for the first time 

in federal court.” Sims, 530 U.S. at 112 (O’Connor, J., concurring); see also N.M. Health 

Connections v. U.S. Dep’t of Health & Human Servs., 946 F.3d 1138, 1165 n.25 (10th 

Cir. 2019) (“In general, an issue must have been raised before an agency for a party to 

seek judicial review of agency action on that issue.”); Nuclear Energy Inst., Inc. v. Envtl. 

Prot. Agency, 373 F.3d 1251, 1297 (D.C. Cir. 2004) (“It is a hard and fast rule of 

administrative law, rooted in simple fairness, that issues not raised before an agency are 

waived and will not be considered by a court on review.”). 

When a statute or regulation requires issue exhaustion, claimants waive issues they 

fail to raise in their administrative proceedings. See Malouf v. S.E.C., 933 F.3d 1248, 

1255 (10th Cir. 2019) (holding that an SEC claimant waived an Appointments Clause 

challenge he did not raise before the agency); Energy W. Mining Co. v. Lyle ex rel. Lyle, 

929 F.3d 1202, 1206 (10th Cir. 2019) (ruling that a claimant waived an Appointments 

Clause challenge he failed to raise in his administrative hearing for Department of Labor 

benefits). The Supreme Court has recognized that it has “imposed an issue-exhaustion 
9 

requirement even in the absence of a statute or regulation.” Sims, 530 U.S. at 108; see 

also United States v. L. A. Tucker Truck Lines, Inc., 344 U.S. 33, 37 (1952). 

The exhaustion requirement, whether it concerns a remedy or an issue, furthers 

two main institutional interests. See Woodford v. Ngo, 548 U.S. 81, 89 (2006). First, it 

allows agencies “to correct [their] own mistakes.” Id. (quotations omitted); see also L. A. 

Tucker, 344 U.S. at 37 (“[O]rderly procedure and good administration require that 

objections to the proceedings of an administrative agency be made while it has 

opportunity for correction in order to raise issues reviewable by the courts.”). Second, it 

“promotes efficiency” by expediting claims, limiting the number of cases that reach 

federal courts, and conserving resources. See Woodford, 548 U.S. at 89; see also In re 

DBC, 545 F.3d 1373, 1379 (Fed. Cir. 2008) (requiring issue exhaustion because it served 

efficiency and agency autonomy). Courts thus have declined to require issue exhaustion 

only in rare circumstances, such as in Sims. Because the district court here relied on Sims

for its decision, we provide an overview of that case. 

Sims v. Apfel 

In Sims, the Supreme Court held that an SSA claimant did not waive issues she 

wished to raise in district court and that she had failed to specify in her request for 

Appeals Council review. 530 U.S. at 112. The SSA ALJ had denied the claimant’s 

request for benefits. The claimant sought Appeals Council reconsideration but did not 

identify the issues she wished to have reviewed. Id. at 105. The Appeals Council denied 

review. Id. She sued in district court, this time listing her challenges to the ALJ’s 
10 

decision. Id. at 105-06. Because she raised issues in district court that she had not 

identified in her appeal to the Council, the court held that it lacked jurisdiction. The Fifth 

Circuit affirmed. Id. at 106 (citing Sims v. Apfel, 200 F.3d 229, 230 (5th Cir. 1998) (per 

curiam)). 

The Supreme Court reversed in a fractured decision. Five Justices joined the first 

section of Justice Thomas’s analysis, but only four joined the second section. Justice 

O’Connor, who joined the first section but not the second, wrote a concurrence. Because 

she relied on narrower grounds than the plurality, her analysis governs. See Marks v. 

United States, 430 U.S. 188, 193 (1977) (“When a fragmented Court decides a case and 

no single rationale explaining the result enjoys the assent of five Justices, the holding of 

the Court may be viewed as that position taken by those Members who concurred in the 

judgments on the narrowest grounds.” (quotations omitted)); Cirko ex rel. Cirko v. 

Comm’r of Soc. Sec., 948 F.3d 148, 155 n.4 (3d Cir. 2020) (“Under the rule of [Marks], 

Justice O’Connor’s analysis . . . controls.”). We summarize below the various opinions. 

a. Majority 

In the first section of his analysis, joined by the majority, Justice Thomas observed 

that issue exhaustion, even without a statute or regulation requiring it, is “a general rule 

because it is usually appropriate under an agency’s practice for contestants in an 

adversary proceeding before it to develop fully all issues there.” 530 U.S. at 109 

(quotations and brackets omitted). But when “an administrative proceeding is not 
11 

adversarial, . . . the reasons for a court to require issue exhaustion are much weaker” and 

do not apply to SSA Appeals Council proceedings. Id. at 110. 

b. Plurality 

Justice Thomas’s second analysis section received only four votes. There, the 

plurality said that issue exhaustion should not be required because “Social Security 

proceedings are inquisitorial rather than adversarial.” Id. at 110-11. It reasoned that “[i]t 

is the ALJ’s duty to investigate the facts and develop the arguments both for and against 

granting benefits, and the Council’s review is similarly broad.” Id. at 111 (citation 

omitted). 

The plurality said that “the Council’s review is plenary unless it states otherwise” 

and that Appeals Council petition forms “provide[] only three lines for the request for 

review.” Id. at 111-12. It concluded that the SSA process “therefore strongly suggests 

that the Council does not depend much, if at all, on claimants to identify issues for 

review.” Id. at 112. 

c. Justice O’Connor’s concurrence 

Justice O’Connor concurred in the judgment and joined only the first section of 

Justice Thomas’s analysis. She observed that, “[i]n most cases, an issue not presented to 

an administrative decisionmaker cannot be argued for the first time in federal court[,]” 

but that, “[i]n the absence of a specific statute or regulation requiring issue exhaustion, 

. . . such a rule is not always appropriate.” Id. at 112-13 (O’Connor, J., concurring). In 

her view, “the agency’s failure to notify claimants of an issue exhaustion requirement in 
12 

this context is a sufficient basis for our decision[,]” and “[r]equiring issue exhaustion is 

particularly inappropriate here, where the regulation and procedures of the [SSA] 

affirmatively suggest that specific issues need not be raised before the Appeals Council.” 

Id. at 113. Because Appeals Council review is plenary and Appeals Council petition 

forms contain only three lines, the claimant “did everything that the agency asked of her” 

even though she did not specify issues in the form. Id.

C. Analysis 

Because the Commissioner does not argue that a statute or regulation requires 

issue exhaustion, we consider whether the institutional interests supporting issue 

exhaustion apply here. We then address whether the district court appropriately departed

from the exhaustion rule. We conclude exhaustion should apply here and that the district 

court erroneously relied on Sims. We therefore reverse. 

Purposes of Issue Exhaustion 

We address whether the purposes for the exhaustion rule apply to the Appellees’ 

Appointments Clause challenges.3

 

3

 Although we have not addressed whether exhaustion is necessary in the SSA

ALJ context, other circuits have imposed an exhaustion requirement. See, e.g., Shaibi v. 

Berryhill, 883 F.3d 1102, 1109 (9th Cir. 2017); Anderson v. Barnhart, 344 F.3d 809, 814 

(8th Cir. 2003); Mills v. Apfel, 244 F.3d 1, 4-5 (1st Cir. 2001). The Third Circuit is the 

only federal appellate court that has addressed exhaustion of an Appointments Clause 

challenge in the SSA ALJ context. It held that claimants do not waive such challenges by 

failing to raise them before their ALJs. See Cirko, 948 F.3d at 159. 
13 

First, had Appellees exhausted their Appointments Clause claims, the SSA could 

have corrected an appointment error. See Woodford, 548 U.S. at 89. The SSA “might 

have changed its position on the Appointments Clause issue; and ‘if it did not, [it] would 

at least [have been] put on notice of the accumulating risk of wholesale reversals being 

incurred by its persistence.” Malouf, 933 F.3d at 1257 (quoting L. A. Tucker, 344 U.S. at

37). Even if corrective action was unlikely “at the behest of a single [benefits claimant],” 

Mathews v. Eldridge, 424 U.S. 319, 330 (1976), Appellees’ failure to exhaust their 

Appointments Clause challenges deprived the SSA of its interest in internal errorcorrection, see Woodford, 548 U.S. at 89.4

 

Second, an exhaustion requirement here would have promoted both judicial and 

agency efficiency. See id. Judicial efficiency would have been served if the SSA 

Commissioner had appointed its ALJs in response to Appellees’ raising their 

Appointments Clause challenges before the agency. Their doing so could have saved the 

judiciary the time and expense of this litigation and the scores of similar cases currently 

on appeal around the country. See Aplt. Br. at viii-xi (listing 49 related appeals in United 

States circuit courts); McKart v. United States, 395 U.S. 185, 195 (1969) (“A 

complaining party may be successful in vindicating his rights in the administrative 

4

 Even though the Supreme Court did not decide Lucia until after the ALJ 

decisions here, this court had decided Bandimere, holding, as in Lucia, that the SEC’s 

ALJs had not been properly appointed. 
14 

process. If he is required to pursue his administrative remedies, the courts may never 

have to intervene.”). 

As to agency efficiency, the SSA could have addressed the Appointments Clause 

issue in the first instance if Appellees had raised it in their administrative proceedings and 

avoided the possibility of having to conduct two ALJ merits hearings on their disability 

benefits claims and those of many others. This prospect would undermine administrative 

efficiency and delay pending cases. In re DBC, 545 F.3d at 1379 (“If [the plaintiff] had 

objected to the [agency], instead of to this court in the first instance, it could have 

obtained relief immediately, and thus avoided the unnecessary expenditure of the 

administrative resources of the [agency] . . . .”). As the Commissioner notes, SSA 

proceedings are time-consuming and the agency is flooded with claimants. See Aplt. Br. 

at 27; see also SSA, Annual Performance Report, Fiscal Years 2019–2021, 3 (2020), 

https://perma.cc/5GFC-2HKM (noting that “the average wait time for a hearing decision 

[is] 470 days”).5

5

 Even if Appellees were to prevail on their Appointments Clause challenges here, 

they do not contest on appeal the district court’s affirmance of the agency’s denial of 

benefits. Oral Arg. at 25:07-25:30. In Bandimere and Lucia, by contrast, the claimants 

appealed the ALJs’ merits decisions as well as the ALJs’ appointments. See Opening 

Brief of Petitioner at 18, Bandimere v. S.E.C., 844 F.3d 1168 (10th Cir. 2016) (No. 15-

9586); Opening Brief for Petitioners at 46, Lucia v. S.E.C., 138 S. Ct. 2044 (2018) (No. 

15-1345). 
15 

No Exception to Issue Exhaustion Should Apply 

In finding an exception to the issue exhaustion requirement, the district court 

mistakenly relied on Sims, which held that exhaustion before the SSA Appeals Council is 

not required. 

First, the Supreme Court in Sims cautioned that its holding did not apply to the 

issue before us. It held only that, when the claimant failed to raise issues in her petition 

for Appeals Council review, she did not waive her ability to raise those issues in district 

court. The Court emphasized that “[w]hether a claimant must exhaust issues before the 

ALJ is not before us.” Sims, 530 U.S. at 107. And the four-Justice dissent predicted that 

“the plurality would not forgive the requirement that a party ordinarily must raise all 

relevant issues before the ALJ.” Id. at 117 (Breyer, J., dissenting).6

 Appellees here did 

not present their Appointments Clause challenges to the ALJs or the Appeals Council. 

Second, the reasons the Sims Court did not require issue exhaustion in petitions to 

the Appeals Council do not apply to SSA ALJ hearings. Justice O’Connor, providing the 

deciding vote, observed that SSA Appeals Council petition forms provide only three lines 

for claimants to specify the bases for appeal, and that appellate review is plenary by 

6

 Since Sims, other circuits have imposed an issue exhaustion requirement in the 

SSA ALJ context. See, e.g., Shaibi, 883 F.3d at 1109 (holding that “Sims concerned only 

whether a claimant must present all relevant issues to the Appeals Council,” and that 

claimants “must raise all issues and evidence at their administrative hearings in order to 

preserve them on appeal” (quotations omitted)); Mills, 244 F.3d at 4 (observing that the 

failure to specify issues for Appeals Council review is “entirely different from failing to 

offer evidence in the first instance to the ALJ, which is far more disruptive of the review 

function”). 
16 

default. Id. at 113-14 (O’Connor, J., concurring). The Sims claimant, therefore, “did 

everything that the agency asked of her” by filling out the form, even though she did not 

specify the contested issues on appeal. Id. at 114. 

By contrast, SSA ALJs must notify claimants of the “specific issues to be decided” 

at each hearing, 20 C.F.R. § 404.938(b)(1), and claimants must “notify the [ALJs] in 

writing at the earliest possible opportunity” if they “object to the issues to be decided at 

the hearing,” id. § 404.939. If Appellees’ ALJs did not list the Appointments Clause as 

an issue “to be decided,” Appellees needed to object and raise it. The claimant in Sims

did not have a similar obligation with respect to Appeals Council review.7

 

Third, the district court placed undue weight on the “non-adversarial” nature of 

SSA ALJ proceedings. Although the Sims majority said the basis for issue exhaustion is 

weakest when agency determination of benefits is inquisitorial, only the plurality relied 

on this rationale to hold exhaustion was not required. The district court failed to 

recognize that Justice O’Connor’s controlling concurrence relied on a narrower ground. 

That is, the SSA does not notify claimants they must raise issues to the Appeals Council, 

the Appeals Council review is plenary, and the claimant “did everything that the agency 

asked of her” even though she identified no issues for review. Sims, 530 U.S. at 114 

(O’Connor, J., concurring). Justice O’Connor’s reasoning does not apply to SSA ALJ 

7

 The Commissioner does not argue that § 404.939 requires issue exhaustion 

before SSA ALJs. We need not decide that question, because we hold exhaustion of 

Appointments Clause challenges is necessary even without a statutory or regulatory 

requirement. 
17 

proceedings, where, as noted above, SSA regulations require claimants to object if they 

dispute the issues to be decided at their ALJ hearings. 

Fourth, even if SSA ALJ review of disability claims is largely non-adversarial, 

Appointments Clause challenges are “adversarial” as described in Sims. The Sims

majority recognized that a proceeding is inquisitorial when the agency develops the 

issues on its own and adversarial when the “parties are expected to develop the issues.” 

Id. at 110. 

An SSA ALJ typically develops issues regarding benefits, but a claimant must 

object to an ALJ’s authority. See, e.g., 20 C.F.R. § 404.940 (explaining that a claimant 

who believes an ALJ is prejudiced “must notify the [ALJ of the objection] at [the] earliest 

opportunity”); Muhammad v. Berryhill, 381 F. Supp. 3d 462, 467 (E.D. Pa. 2019) (“[An 

Appointments Clause] attack on the structural integrity of the process itself[] is as 

adversarial as it gets and under . . . Sims presents the strongest case for requiring issue 

exhaustion.” (citation and quotations omitted)). 

Fifth and finally, the Third Circuit’s decision in Cirko is unpersuasive and counter 

to our precedent.8 There, the court held that claimants need not exhaust Appointments 

Clause challenges before the SSA ALJ. It reasoned that, given their constitutional nature, 

8 Cirko was decided after the parties filed their opening briefs. In its reply brief, 

filed after Cirko, the Commissioner argues we should not follow the Third Circuit. Aplt. 

Reply Br. at 11. 
18 

such challenges are “beyond the power of the agency to remedy.” Cirko, 948 F.3d at 

157. 

We rejected this view in Malouf and Energy West. See Malouf, 933 F.3d at 1257 

(explaining that an administrative Appointments Clause challenge would have notified 

the agency of the need to appoint its ALJs, a remedy within the SSA’s authority); Energy 

W., 929 F.3d at 1206 (observing that an Appointments Clause challenge would not have 

been futile because the agency’s appellate tribunal could vacate a judgment by an 

unappointed ALJ). And to the extent Cirko relied on Sims, we decline to follow it for the 

reasons discussed.9

* * * * 

The district court failed to provide adequate reasons to depart from the general 

principle that “an issue must have been raised before an agency for a party to seek 

judicial review of agency action on that issue.” N.M. Health Connections, 946 F.3d at 

1165 n.25.10

9 We also have recognized that an issue exhaustion requirement discourages the 

strategic practice of “sandbagging.” Freytag v. Comm’r, 501 U.S. 868, 895 (1991) 

(Scalia, J., concurring). That is, without an exhaustion requirement, a claimant might 

proceed through the administrative process without raising an issue and then, if the SSA 

denies benefits, raise the issue in court and seek a new ALJ hearing. See Forest 

Guardians v. U.S. Forest Serv., 641 F.3d 423, 431 n.6 (10th Cir. 2011) (“In practice, the 

requirement that plaintiffs exhaust their administrative remedies greatly minimizes the 

threat of sandbagging—i.e., the concern that plaintiffs will shirk their duty to raise claims 

before the agency, only to present new evidence at trial that undermines the agency’s 

decision.” (quotations omitted and alterations incorporated)). 

10 Assuming, as we have found, issue exhaustion is required, Appellees urge us to 

excuse their failure to raise their Appointments Clause challenge before the agency. The 
19 

III. CONCLUSION 

We reverse the district court’s judgment. 

district court did not address this issue. We decline to excuse Appellees’ failure to 

exhaust for substantially the same reasons we have found an issue exhaustion 

requirement.