United States Court of Appeals

For the Eighth Circuit

___________________________

No. 18-3422

___________________________

John J. Davis,

lllllllllllllllllllllPlaintiff - Appellant,

v.

Andrew Saul, Commissioner, Social Security Administration,

lllllllllllllllllllllDefendant - Appellee.

 ___________________________

No. 18-3451

___________________________

 Destiny M. Thurman,

lllllllllllllllllllllPlaintiff - Appellant,

v.

Andrew Saul, Commissioner, Social Security Administration,

lllllllllllllllllllllDefendant - Appellee.

 ___________________________

No. 18-3452

___________________________

 Kimberly L. Iwan,

lllllllllllllllllllllPlaintiff - Appellant,
v.

Andrew Saul, Commissioner, Social Security Administration,

lllllllllllllllllllllDefendant - Appellee.

 ____________

Appeals from United States District Court 

for the Northern District of Iowa - Cedar Rapids

 ____________

 Submitted: November 13, 2019

Filed: June 26, 2020

____________

Before COLLOTON, WOLLMAN, and BENTON, Circuit Judges. 

____________

COLLOTON, Circuit Judge.

Appellants John Davis, Destiny Thurman, and Kimberly Iwan applied

unsuccessfully for social security benefits in 2013 or 2014. Each brought an action

in the district court, asserting that the administrative law judge who denied the

application for benefits was not properly appointed in accordance with the

Appointments Clause of the Constitution. Art. II, § 2, cl. 2. None of the claimants

raised this argument during proceedings before the Social Security Administration

(SSA). The district court1 ruled in all three cases that the claimant waived the

argument by failing to raise it before the agency. We conclude that the district court

properly declined to consider the issue, and we affirm the judgments.

1The Honorable Linda R. Reade, United States District Judge for the Northern

District of Iowa. 

-2-
I.

The three claimants applied for disability insurance benefits and supplemental

security income in either 2013 or 2014. The agency denied their applications on

initial review and on reconsideration, and each claimant requested and received a

hearing before an administrative law judge. After an ALJ denied each application,

the claimants sought review by the agency’s Appeals Council, and the Appeals

Council denied review. None of the claimants ever objected to the manner in which

the ALJ was appointed. 

All three claimants sought review of the agency’s decision in the district court

under 42 U.S.C. § 405(g). While the cases were pending, the Supreme Court in Lucia

v. SEC, 138 S. Ct. 2044 (2018), decided that administrative law judges of the

Securities and Exchange Commission are “Officers of the United States” who must

be appointed by the President, a court of law, or a head of a department. Id. at 2051,

2055. The Court ruled 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.” 

Id. at 2055 (internal quotation omitted).

As of 2017, administrative law judges in the Social Security Administration

were not appointed by the head of the agency, but rather by lower-level officials. 

While Lucia was pending at the Court, the SSA issued several emergency measures. 

On January 30, 2018, the agency’s Office of General Counsel warned ALJs that they

might receive Appointments Clause challenges and instructed them not to “discuss

or make any findings related to the Appointments Clause issue,” because the “SSA

lacks the authority to finally decide constitutional issues such as these.” The agency

directed the ALJs to acknowledge when the issue had been raised. Soc. Sec. Admin.,

EM-18003: Important Information Regarding Possible Challenges to the

Appointment of Administrative Law Judges in SSA’s Administrative Process (2018). 

-3-
On June 25, shortly after the Court decided Lucia, the SSA’s Office of Hearing

Operations issued a revised emergency measure. This direction continued to instruct

ALJs to acknowledge, but not to address, challenges based on the Appointments

Clause. Soc. Sec. Admin., EM-18003 REV: Important Information Regarding

Possible Challenges to the Appointment of Administrative Law Judges in SSA’s

Administrative Process – UPDATE (2018). 

Finally, on August 6, the Office of Hearing Operations issued another revised

version of the same emergency measure. This one announced that (i) the agency’s

Acting Commissioner recently had ratified the appointment of all ALJs, thereby

curing any defect related to the Appointments Clause, and (ii) ALJs should continue

to acknowledge and report any Appointments Clause challenges that were raised

before the ratification date. Soc. Sec. Admin., EM-18003 REV 2: Important

Information Regarding Possible Challenges to the Appointment of Administrative

Law Judges in SSA’s Administrative Process – UPDATE (2018).

In their complaints, Davis, Thurman, and Iwan did not raise a challenge to the

appointment of the ALJ who decided their cases. A magistrate judge, considering

only the issues raised by each claimant, recommended that the district court affirm the

agency’s decision denying each application for benefits. In August 2018, each

claimant moved for leave to file a supplemental brief that would raise an

Appointments Clause challenge for the first time. The district court allowed briefing,

but declined to consider the new argument. Citing Anderson v. Barnhart, 344 F.3d

809, 814 (8th Cir. 2003), the court ruled in each case that because the claimant did

not raise an Appointments Clause challenge before the ALJ or Appeals Council, the

claimant had waived the issue. Other circuits presented with the issue have disagreed

on whether exhaustion of the issue before the agency is required. Compare Carr v.

Comm’r, Nos. 19-5079, 19-5085, 2020 WL 3167896 (10th Cir. June 15, 2020), with

Cirko v. Comm’r, 948 F.3d 148 (3d Cir. 2020).

-4-
II.

The claimants sought review of the agency’s decisions in federal court under

42 U.S.C. § 405(g). That section provides that “[a]ny individual, after any final

decision of the Commissioner of Social Security . . . may obtain a review of such

decision by a civil action.” Because the claimants presented their claims for benefits

to the Commissioner, the district court had jurisdiction under § 405(g) to review the

agency’s decisions. Mathews v. Eldridge, 424 U.S. 319, 328 (1976). 

Even where a district court has jurisdiction under the statute, however, this

court also has required a claimant to exhaust a particular issue before an

administrative law judge in order to seek judicial review on that issue. Anderson, 344

F.3d at 814. The agency’s regulations similarly require a claimant to notify an ALJ

before the hearing if the claimant objects to the issues to be decided. 20 C.F.R.

§ 404.939.

In Sims v. Apfel, 530 U.S. 103 (2000), the Supreme Court held that a claimant

who was denied benefits by an administrative law judge was not required to exhaust

an issue before the Appeals Council in order to seek judicial review. Although the

Court said that the reasons for requiring exhaustion are much weaker in a nonadversarial proceeding than in an adversarial proceeding, id. at 109-10, the case

ultimately was decided on narrower grounds. The deciding vote turned on the fact

that the agency told the claimant that she could seek review by sending a letter or

filling out a one-page form that should take ten minutes, that only failing to request

Appeals Council review would preclude judicial review, and that the Appeals Council

would review her entire case for issues. Id. at 113-14 (O’Connor, J., concurring in

part and concurring in the judgment). 

Foreshadowing Sims, this court held in Harwood v. Apfel, 186 F.3d 1039 (8th

Cir. 1999), that a claimant did not forfeit an issue by failing to raise it before the

-5-
Appeals Council. Id. at 1042-43. The Sims plurality favorably cited Harwood. 530

U.S. at 112 (plurality opinion). But this court in Harwood also acknowledged that

failure to raise an issue before either the ALJ or the Appeals Council “perhaps

present[s] a stronger case for a waiver rule.” 186 F.3d 1043 n.3. Other pre-Sims

cases from this court appeared to require exhaustion of issues before an ALJ. Pena

v. Chater, 76 F.3d 906, 909 (8th Cir. 1996); Brockman v. Sullivan, 987 F.2d 1344,

1348 (8th Cir. 1993). Whether a claimant must exhaust issues before an ALJ was not

before the Court in Sims, 530 U.S. at 107, and our post-Sims decision in Anderson

expressly required that step. 344 F.3d at 814; see also Forte v. Barnhart, 377 F.3d

892, 896 (8th Cir. 2004).

The issue exhaustion requirement is consistent with longstanding principles of

administrative law. “Ordinarily an appellate court does not give consideration to

issues not raised below.” Hormel v. Helvering, 312 U.S. 552, 556 (1941). “[O]rderly

procedure and good administration require that objections to the proceedings of an

administrative agency be made while it has opportunity for correction.” United States

v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 37 (1952). “Exhaustion is required

because it serves the twin purposes of protecting administrative agency authority and

promoting judicial efficiency.” McCarthy v. Madigan, 503 U.S. 140, 145 (1992). In

most cases, therefore, “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 in part and concurring in the judgment). In determining

whether to allow an exception to the ordinary rule, courts should be “guided by the

policies underlying the exhaustion requirement.” Bowen v. City of New York, 476

U.S. 467, 484 (1986).

The claimants advance three interrelated arguments for excusing their failure

to raise an Appointments Clause challenge during agency proceedings. They

maintain that constitutional claims need not be exhausted, that exhaustion of this

particular constitutional challenge would have been futile, and that the court should

-6-
exercise its discretion to waive any applicable exhaustion requirement. This court has

largely rejected those contentions in litigation arising from another agency. Presented

with a constitutional challenge to appointments of members of the National Labor

Relations Board, we held that a company waived its claim by failing to raise the issue

before the Board: “Constitutional considerations, no matter how important or

‘fundamental,’ can be forfeited as Justice Scalia has emphasized: ‘Appointments

Clause claims, and other structural constitutional claims, have no special entitlement

to review.’” NLRB v. RELCO Locomotives, Inc., 734 F.3d 764, 798 (8th Cir. 2013)

(quoting Freytag v. Comm’r, 501 U.S. 868, 893 (1991) (Scalia, J., concurring in part

and concurring in the judgment)). 

In the social security context, the Supreme Court has explained that a claimant

need not litigate certain constitutional questions in order to satisfy the jurisdictional

requirement of the judicial review statute. Eldridge, 424 U.S. at 329 n.10; see

Califano v. Sanders, 430 U.S. 99, 109 (1977). And we may accept that “[i]t is

unrealistic to expect that the [Commissioner] would consider substantial changes in

the current administrative review system at the behest of the single aid recipient

raising a constitutional challenge in an adjudicatory context.” Eldridge, 424 U.S. at

330. 

But those observations do not demonstrate that exhaustion would have been

futile here. Application of the exhaustion doctrine is supposed to be “intensely

practical.” Bowen, 476 U.S. at 484 (quoting Eldridge, 424 U.S. at 331 n.11) (internal

quotation omitted). As a practical matter, the claimants here maintain that hundreds

if not thousands of social security claimants may raise for the first time in federal

court a challenge to the manner in which administrative law judges were appointed. 

The practical effect of sustaining that position would be to require the agency to

rehear a multitude of cases. Yet if hundreds of claimants had raised an Appointments

Clause challenge before the agency, the Commissioner would have been in a position

to avoid an administrative quagmire. “Repetition of [an] objection . . . might lead to

-7-
a change of policy, or, if it did not, the [agency] would at least be put on notice of the

accumulating risk of wholesale reversals being incurred by its persistence.” L.A.

Tucker Truck Lines, 344 U.S. at 37. Even if an individual ALJ was powerless to

address the constitutionality of her appointment, the agency head—alerted to the issue

by claimants in the adjudicatory process—could have taken steps through ratification

or new appointments to address the objection.

For similar reasons, we do not believe this is “one of those rare cases in which

we should exercise our discretion” to consider a non-exhausted claim. Freytag, 501

U.S. at 879. Freytag resolved a constitutional challenge to the appointment of

Special Trial Judges of the United States Tax Court. The Court noted that although

the petitioner did not raise the issue before the Tax Court, the claim implicated “the

strong interest of the federal judiciary in maintaining the constitutional plan of

separation of powers.” Id. (quoting Glidden Co. v. Zdanok, 370 U.S. 530, 536

(1962)). This court, however, has not understood Freytag to mean that all

Appointments Clause challenges are exempt from the typical requirements of issue

exhaustion. RELCO Locomotives, 734 F.3d at 798. We consider here the

practicalities of potentially upsetting numerous administrative decisions because of

an alleged appointment flaw to which the agency was not timely alerted. We also

recognize the perverse incentives that could be created by allowing claimants to

litigate benefits before an ALJ without objection and then, if unsuccessful, to secure

a remand for a second chance based on an unexhausted argument about how the ALJ

was appointed. See Freytag, 501 U.S. at 895 (Scalia, J., concurring in part and

concurring in the judgment). Under all of the circumstances, we do not view this as

a rare situation in which a federal court should consider an issue that was not

presented to the agency.

The judgments of the district court are affirmed.

______________________________

-8-