PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 21

- 2048

CAMILLE M. BROOKS , Plaintiff

- Appellant ,

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

- Appellee

.

Appeal from the United States District Court for the Eastern District of Virginia , at Norfolk

. Mark S. Davis , Chief District Judge. ( 2:20

- cv - 00262

- MSD

- DEM )

A rgued : October 26, 2022 Decided: February 22, 2023

Before KING and HEYTENS , Circuit Judges , and Sherri A. LYDON, United States District Judge for the District of South Carolina, sitting by designation.

Vacated and remanded by published opinion

. Judge King wrote the opinion, in which Judge Heytens and Judge Lydon joined

.

ARGUED: David Fallon Chermol, CHERMOL & FISHMAN, LLC, Philadelphia, Pennsylvania, for Appellant. Joshua Marc Salzman, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Garry Daniel Hartlieb, OFFICE OF THE UNITED STATES ATTORNEY, Washington, D.C., for Appellee. ON BRIEF : Jessica D. Aber, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee. USCA4 Appeal: 21-2048 Doc: 41 Filed: 02/22/2023 Pg: 1 of 182 KING, Circuit Judge: Plaintiff Camille Brooks appeals from the 2021 opinion of the district court in the Eastern District of Virginia affirming the final decision of defendant Kijakazi, as the Acting Commissioner of Social Security, which denied Brooks’s claim for disability benefits

. See Brooks v. Kijakazi , No. 2:20

- cv - 00262 (E.D. Va. Sept. 15, 2021), ECF No. 25 (the “Opinion”). 1 As explained herein, we agree with Brooks’s appellate contention that, pursuant to the Supreme Court’s 2018 decision in Lucia v. SEC , 138 S. Ct. 2044 (2018), the administrative law judge ( “ALJ Bright”) who rendered the Commissioner’s final decision did so in contravention of the Constitution’s Appointments Clause. 2 Accordingly, without resolving the merits contentions that Brooks also pursues on appeal , we vacate the judgment of the distr ict court and direct a remand to the Commissioner for a new and plenary hearing on Brooks’s disability benefits claim, to be conducted before a different and properly appointed ALJ.

1 Hereinafter, we will refer to the defendant Acting Commissioner of Social Security simply as “the Commissioner.”

2 The Appointments Clause of the Constitution of the United States is found at Article II, Section 2, Clause 2, and provides , in haec verba , that 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. USCA4 Appeal: 21-2048 Doc: 41 Filed: 02/22/2023 Pg: 2 of 183 I.
A. Brooks applied for Social Security disability benefits in September 2015, alleging that she had been disabled since June 2014 due to glaucoma, arthritis, dry eye disease, migraines, degenerative disc disease, complications from spinal surgery, and a torn rotator cuff. After her disability benefits claim w as denied at the initial and reconsideration levels , Brooks requested an administrative hearing before a n ALJ of the Social Security Administration ( the “ Agency ” ) , and a hearing was convened and conducted by ALJ Bright in January 2018. On March 15, 2018, ALJ Bright denied Brooks’s claim, ruling that , although Brooks suffer ed from a series of medically severe impairments, she possessed sufficiently transferable job skills to enable her to hold positions that were available “in significant numbers in the national economy

. ” See A.R. 139 (the “ 2018 ALJ Decision ”). 3 Brooks’s ability to work in those positions, ALJ Bright explained, barred a finding of “disability” status under the Social Security Act. Brooks promptly appealed the 2018 ALJ Decision to the Agency’s Appeals Council. In June 2018, w hile Brooks’s admini strative appeal was pending before the Appeals Council , the Supreme Court decided Lucia v. SEC

— the decision of the Court that underpins our ruling today

— which recognized that the ALJs of the Securities and Exchange Commission (the “SEC”) are “inferior Officers ” of the United States within the

3 Citations herein to “A.R. __” refer to the contents of the Administrative Record in this appeal. USCA4 Appeal: 21-2048 Doc: 41 Filed: 02/22/2023 Pg: 3 of 184 meaning of the Appointments Clause. See 138 S. Ct. 2044, 2051, 2055 (2018) (citing U.S. Const. art. II, § 2, cl. 2). Because the Appointments Clause requires such “ inferior
O fficers” to be appointed by either the President, a court of law, or the head of an executive department, the Lucia Court ruled that the SEC ALJ overseeing the administrative proceedings at issue

— who had been appointed by SEC staff members

— “lacked

cons titutional authority to do his job.” Id. at 2050. Accordingly, the Court remanded Lucia’s case to the SEC for a new hearing before a different and properly appointed ALJ. On July 16, 2018, r ecognizing that Agency ALJs were

— like the SEC ALJs

— selected by the A gency staff, the Commissioner responded to the Supreme Court’s Lucia decision by “ratif[ying] the appointments of [the A gency’s] ALJs” and “approv[ing] those appointments as her own”

— including, as relevant here, the appointment of ALJ Bright

. See 84 Fed. Reg. 9582, 9583 (Mar. 15, 2019). In early 2019 , the Agency issued guidance to its Appeals Council directing that, in response to timely raised Appointments Clause challenges to pre

- ratification ALJ decisions , the Council should “vacate the hearing decision” and “remand the case to an ALJ other than the ALJ who issued the decision under review.” Id. Of great importance , the parties to this appeal do not dispute that, pursuant
to Lucia , the denial of Brooks’s disability benefits claim in the 2018 ALJ Decision was invalid

— owing to ALJ Bright’s then

- unconstitutional appointment. On October 24, 2018, a fter granting Brooks’ s request for review, the Agency’s Appeals Council vacated the 2018 ALJ Decision that denied Brooks’s disability benefits claim and remanded her case for further proceedings. Brooks had not theretofore presented the Appeals Council with an Appointments Clause challenge, however, and the Council USCA4 Appeal: 21-2048 Doc: 41 Filed: 02/22/2023 Pg: 4 of 185 did not address the Appointments Clause issue or the Supreme Court’s Lucia decision. Rather, the Council identified potential flaws in the evidence provided by a vocational expert regarding Brooks’s transferable job skills , and it consequently remanded Brooks’s disability benefits claim to ALJ Bright on that basis

. With Brooks’s disability benefits claim having been returned from the Appeals Council , ALJ Bright

— with a post

- Lucia appointment in hand and having been duly ratified by the Commissioner

— conducted another hearing on Brooks’s claim and received evidence from a new vocational expert. On April 25, 2019, ALJ Bright once again ruled that Brooks was not “disabled” and denied her disability claim, concluding that Brooks possessed the residual functional capacity to perform “light work” and could perform her “sedentary[] and light” past relevant work as an assistant museum director. See A.R. 20,
24 (th e “2019 ALJ Decision”)

. On March 27, 2020, t he Appeals Council denied review of the 2019 ALJ D ecision, making that D ecision the “final decision of the Commissioner , ” and rendering it eligible for judicial review pursuant to 42 U.S.C. § 405(g).
B.
1. Brook s initiated this civil action in the Eastern District of Virginia on May 21, 2020, alleging that the 2019 ALJ Decision was not supported by substantial evidence and , in turn, requesting an award of disability benefits or a remand to the Agency “for further USCA4 Appeal: 21-2048 Doc: 41 Filed: 02/22/2023 Pg: 5 of 186 development and analysis.” See J.A. 20

. 4 By her complaint and ensuing motion for summary judgment, Brooks maintained that (1) ALJ Bright had failed to resolve contradictory evidence from the two vocational experts; (2) ALJ Bri ght had failed to account for Brooks’s mild mental functional limitations in determining her residual functional capacity ; and also (3) that , under Lucia , the 2019 ALJ D ecision was fatally tainted by the undisputed Appointments Clause defect underlying the 2018 ALJ D ecision

. 2. In a Report and Recommendation issued in July 2021 (the “R&R”) , a magistrate judge in the Eastern District of Virginia recommended that the district court grant the Commissioner’s cross - motion for summary judgment and affirm the 2019 ALJ Decision

. See Brooks v. Kijakazi , No. 2:20

- cv - 00262 (E.D. Va. July 16, 2021), ECF No. 21. 5 After resolving that ALJ Bright had properl y relied on the vocational expert’s testimony in the 2019 hearing and that Brooks’s mental limitations were adequately evaluated in ALJ Bright’s analysis, the R&R assessed Brooks’s Appointments Clause challenge. In that regard , the R&R recognized that , al though Brooks had failed to raise her Appointments Clause contention in the administrative proceedings, the Supreme Court’s 2021 decision
in Carr v. Saul had concluded that Social Security claimants were not required to raise Appointments Clause challenges before the A gency in order to preserve th at constitutional

4 Citati ons herein to “J.A. __” refer to the contents of the Joint Appendix filed by the parties in this appeal.

5 The district court had referred Brooks’s claims to the magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(B). USCA4 Appeal: 21-2048 Doc: 41 Filed: 02/22/2023 Pg: 6 of 187 issue for review in federal court. See 141 S. Ct. 1352, 1356 (2021). Accordingly, pursuant
to Carr , Brooks had interposed a “timely challenge to the constitu tional validity of the appointment of [the] officer who adjudicate[d] [her] case , ” in that she was pursuing her Appointments Clause claim in her federal court proceedings. See Lucia , 138 S. Ct. at 2055. Nevertheless, t he R&R recommended to the district co urt that the 2019 ALJ Decision was not fatally flawed by the Appointments Clause error . The R&R reasoned that , although the 2018 adjudication of Brooks’s disability benefits claim was constitutionally infirm, there was no need for a different ALJ to have adjudicate d Brooks’s claim on remand from the Appeals Council post

- Lucia

. According to the R&R, the Council had vacated the 2018 ALJ D ecision in view of “a specific evidentia ry defect”

— and not because of the Appointments Clause defect. See R&R 24

. The R&R recognized that the Supreme Court had explained in Lucia that the remedy for an Appointments Clause violation was chosen in part out of concern that an illegally appointed ALJ could not “be expected to consider the matter as though he had not adjudicated it before.” Id. (quoting
Lucia , 138 S. Ct. at 2055). Because the 2018 ALJ Decision was vacated on a merits

- based issue, however, the R&R resolved that “the concern animating the Supreme Court’s remand order in Lucia is not present , ” and thus that Lucia ’s remedy of remand to a different
ALJ was inapplicable and inapprop riate. Id. at 25.
3. By its O pinion of September 15, 2021, the district court adopted the R&R in full, grant ed the Commissioner’s motion for summary judgment , den ied Brooks’s summary judgment motion, and affirm ed the A gency’s denial of Brooks’s disability benefits claim. USCA4 Appeal: 21-2048 Doc: 41 Filed: 02/22/2023 Pg: 7 of 188 The court rebuffed Brooks’s objections to the R&R , concluding that her merits

- related challenges to the 2019 ALJ D ecision failed

. In assessing Brooks’s Appointments Clause challenge , the district court resolved that the 2019 ALJ D ecision was constitutionally sound because (1) ALJ Bright had

— before the 2019 ALJ D ecision

— been properly appointed within the mandate of the Appointments Clause; (2) the Appeal s Council’s vacatur of the constitutionall y infirm 2018
ALJ D ecision on a merits

- related issue eliminated any requirement to apply Lucia ’s remedy of a remand to a different ALJ; and (3) in any event, the Supreme Court had specified in Lucia that it “[did] not hold that a new officer is required fo r every Appointments Clause violation.” See Opinion 8 (quoting Lucia , 138 S. Ct. at 2055 n.5 )

. Following entry of the final judgment , Brooks timely not ic ed this appeal . W e possess jurisdiction pursuant to 28 U.S.C. § 1291.

II. On appeal, Brooks presents the same contentions that she pressed in the district

court against the 2019 ALJ D ecision. Specifically, she contends that ALJ Bright failed to “explain the weight she gave to the conflicting testimony” provided by the competing vocationa l experts; that ALJ Bright neglected to consider Brooks’s mental limitations in assessing her residual functional capacity; and that, because the 2018 ALJ Decision represented an unconstitutional rejection of Brook s ’s disability benefits claim that was not USCA4 Appeal: 21-2048 Doc: 41 Filed: 02/22/2023 Pg: 8 of 189 cured as required by Lucia , the 2019 ALJ D ecision contravened the Appointments Clause.
See Br. of Appellant 10

. 6 In reviewing a S ocial S ecurity disability determination, we afford no deference to a district court ’s decision and will instead uphold the ALJ’s underlying determination so long as the ALJ applied the correct legal standards and the resulting conclusion is supported by substanti al evidence. See Bird v. Comm’r of Social Sec. Admin. , 699 F.3d 337, 440 (4th Cir. 2012) (citing 42 U.S.C. § 405(g)). In these circumstances, however, we need not resolve the question of whether the 2019 ALJ D ecision was supported by substantial evidence . A s explained herein, th at Decision is constitutionally infirm under Lucia

. W ithout resolving the merits contentions, we are obliged to vacate the judgment and remand for Brooks’s disability benefits claim to be returned to the Commissioner for a new and plenary hearing before a different and properly appointed ALJ.

6 We observe that Brooks has cast her A ppointments Clause appellate argument largely in terms of issue preservation and forfeiture, defending her ability to receive relief on the constitutional claim notwithstanding her failure to present it during the administrative proceedings. But as explai ned previously

— and as the Commissioner concedes, see Br. of Appellee 20

— the Supreme Court has now ruled that S ocial S ecurity claimants are not required to exhaust their Appointments Clause challenges before the A gency in order to pursue them in federal court. See Carr v. Saul , 141 S. Ct. 1352, 1356 , 1360

- 61 (2021). In any event, Brooks has correctly explained that the Appointments Clause entitles her to a remand and a new and plenary hearing on her disability benefits claim

. See Br. o f Appellant 39, 42. USCA4 Appeal: 21-2048 Doc: 41 Filed: 02/22/2023 Pg: 9 of 1810 III.
A. The Appointments Clause of Article II of the Constitution specifies that the President “shall nominate, and by and with the Advice and Consent of the Sen ate, shall appoint .

. . Officers of the United States.” See U.S. Const. art. II, § 2, cl. 2. Relevant here, the Clause goes on to provide that “the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the Presiden t alone, in the Courts of Law, or in the Heads of Departments.” Id. Because the Appointments Clause acts to “preserve[]

. . . the Constitution’s structural integrity by preventing the diffusion of the appointment power,” see Ryder v. United States , 515 U .S. 177, 182 (1995), “remedies with bite” should be applied to appointments that run afoul of the Clause’s restrictions, see Cody v. Kijakazi , 48 F.4th 956, 960 (9th Cir. 2022).
In Lucia v. SEC , the Supreme Court held in June 2018 that the SEC’s ALJs are

“ inferior Officers” under the Constitution, and that those ALJ positions are subject to the requirements of the Appointments Clause. See 138 S. Ct. 2044, 2055 (2018)

. That is so, the Court ruled, because the SEC’s ALJs wield “extensive powers .

. . comparable to that of a federal district judge conducting a bench trial,” occupy “continuing office[s] established by law,” and “exercis[e] significant authority pursuant to the laws of the United
States.” Id. at 2049, 2051 , 2053 (citing Freytag v. Comm’r , 501 U.S. 868 (1991)). Accordingly, the Lucia Court ruled that the SEC’s ALJs were required to be appointed by “the President alone,” a “Court of Law,” or a “Head of Department,” and that a department head can include “the Commission itself.” Id. at 2050. Although Lucia dealt specifically USCA4 Appeal: 21-2048 Doc: 41 Filed: 02/22/2023 Pg: 10 of 1811 with SEC ALJs, the Court’s ruling on the Appointments Clause has been treated in subsequent decisions to apply broadly to ALJs in other executive department federal agencies. See, e.g. , Carr v. Saul , 141 S. Ct. 1352, 1357 (2021) (applying Lucia to judicial review of Appointments Clause challenges to decisions rendered by Agency ALJs). The SEC ALJ at issue in Lucia had been selected by the SEC staff . B ecause that
AL J was not the sort of “non

- officer employee” about whom “the Appointments Clause cares not a whit,” the Lucia Court ruled that the ALJ’s decision regarding compliance with the federal securities laws was in contravention of the Clause. See 138 S. Ct. at 2 051. In turn, the Court determined that the “relief [that] follows” from a timely and valid Appointments Clause challenge is “a new hearing before a properly appointed official.” Id. at 2055 (quoting Ryder , 515 U.S. at 182

- 83). Importantly , the Court sp ecified that the “new hearing” that Lucia referenced could not be conducted by the same ALJ that had rendered the decision at issue

— even if that ALJ “has by now received (or receives sometime in the future) a constitutional appointment”

— because the initial ALJ “cannot be expected to consider the matter as though he ha[s] not adjudicated it before.” Id. Explaining its remedy, the C ourt in Lucia emphasized that “providing a successful litigant with a hearing before a new judge” not only serve s the Appointments Clause’s structural purpose s, but also “create [s] incentives to raise Appointments Clause challenges,” given that “the old ju dge would have no reason to think he did anything wrong on the merits .

. . and so could be expected to reach all the same judgments , ” if the matter in dispute were returned to him. See 138 S. Ct. at 2055 n.5. At bottom, the Court made USCA4 Appeal: 21-2048 Doc: 41 Filed: 02/22/2023 Pg: 11 of 1812 plain that , “[t]o cure the constitutional error, another ALJ .

. . must hold the new hearing to which [the claimant] is entitled.” Id. at 2055.
B.
1.

a. In this appeal , there is no dispute that the 2018 ALJ Decision denying Brooks’s disability benefits claim was not constitutionally sound

. That is, ALJ Bright was improperly appointed to her post as an ALJ by the Agency staff. But Brooks and the Commissioner have parted ways on the constitutional validity of the 2019 ALJ D ecision , also rendered by ALJ Bright

. Brooks insists that, because she has not received the remedy prescribed by Lucia for the Appointments Clause violation that infected the 2018 ALJ Decision , the 2019 ALJ D ecision was fatally “tainted” by its 2018 predecessor and is also a nullity. In the circums tances, we are constrained to agree with B r ooks

. The Commissioner, for her part, primarily counters by adopting the district court’s conclusion that , because “[t]he only decision under review by this Court is the ALJ’s April 2019 merits

- based decision, whi ch was made after the ALJ’s appointment was ratified by the Acting Commissioner .

. . [Brooks’s] Appointments Clause objection fails.” See Opinion 8

- 9. More specifically , the Commissioner argues that , because ALJ Bright’s “appointment was ratified .

. . before she issued the decision at issue in this appeal,” there is no reversible constitutional error for us to correct. See Br. of Appellee 20. The Commissioner also asserts that the Appointments Clause infirmity of the 2 018 ALJ USCA4 Appeal: 21-2048 Doc: 41 Filed: 02/22/2023 Pg: 12 of 1813 D ecision is “of no moment , ” because it was later vacated by the Appeals Council. Id. at 21. It is true that, when ALJ Bright filed her second denial of Brooks’s disability benefits claim in April 2019, she had been properly appointed to her ALJ po sition by virtue of the Commissioner’s 2018 ratification. And the 2019 ALJ Decision is the ruling now being challenged . But the Commissioner overlooks at least three important facts: (1) ALJ Bright denied Brooks’s disability benefits claim in 2018 in contravention of the Appointments Clause; (2) the Supreme Court thereafter decided in Lucia that, “[t]o cure [that] constitutional error, another ALJ .

. . must hold [a] new hearing,” see 138 S. Ct. at 2055; and (3) Brooks has never been afforde d the remedy specified by the Lucia Court. Al though Brooks was accorded another hearing, the very same ALJ

— ALJ Bright

— presided and again denied Brooks’s claim by way of the 2019 ALJ Decision. In that regard, this appeal bears striking similarities to the Ninth Circuit’s recent decision in Cody v. Kijakazi , 48 F.4th 956 (9th Cir. 2022). There , an Agency ALJ denied Cody’s claim for Social Security benefits in September 2017

— well before the Commissioner’s 2018 ratificati on and in violation of the Appointments Clause. In September 2018, following the Lucia decision and the Commissioner’s ratification , Cody sought review of the ALJ’s ruling in federal court, but did not raise an Appointments Clause challenge. T he district court granted relief to Cody, vacat ing the ALJ’s ruling on an evidentiary issue . O n remand, the Appeal s Council returned Cody’s benefits claim to the
same ALJ

— who in 2019 again denied Cody ’s claim . Cody then returned to the district court, raising bot h merits and Appointments Clause challenges to the ALJ’s 2019 decision

. USCA4 Appeal: 21-2048 Doc: 41 Filed: 02/22/2023 Pg: 13 of 1814 T he district court nevertheless affirmed , denying Cody’s Appointments Clause claim “because the 2017 decision had been vacated and [the ALJ] was properly appointed when she issued the 2019 decision

. ” Id. at 960. I n other words, the district court in Cody ’s case applied the same erroneous reason ing as the district court in this case

. The Ninth Circuit vacated the district court’s Cody decision in 2022 , however, and it remanded Cody’s claim to the Agency , directing that “[t]he Commissioner should .

. . assign a different , validly appointed ALJ to rehear and adjudicate Cody’s case de novo.”
See 48 F.4th at 963 (emphasis in original) . The court of appeals decision emphas ized that an Appointments Clause violation is “no mere technicality or quaint formality

— it weakens our constitutional design.” Id. at 960. After assessing the rationale and requirements of the Supreme Court’s Lucia decision , the Ninth Circuit ruled tha t the Agency ALJ’s “2017 decision tainted the post

- ratification 2019 decision .” Id. at 962. Although its decision recognized that the Agency ALJ in Cody had been properly appointed when she denied Cody’s claim in 2019, the court of appeals explained explicitly that , “because the same ALJ issued both decisions, Cody did not receive what Lucia requires: an adjudication untainted by an Appointments Clause violation.” Id. Put simply, the Cody decision is practically on all

- fours, and there is no reason for

us to reach a different conclusion and thus create a circuit split

. Given that ALJ Bright “lacked constitutional authority to do [her] job” with respect to Brooks’s disability benefits claim in 2018, see Lucia , 138 S. Ct. at 2050

— and because Brooks never received the requisite remedy

— the constitutional error committed in 2018 was a continuing violation that infected ALJ Bright’s 2019 adjudication of the same claim. And the Lucia decision USCA4 Appeal: 21-2048 Doc: 41 Filed: 02/22/2023 Pg: 14 of 1815 explains that claimants (like Brooks) are ent itled to relief from any “adjudication tainted with an appointments violation.” See 138 S. Ct. at 2055. The district court , for its part, concluded that there was no such blight on the 2019 ALJ D ecision because “[t]he ALJ was properly appointed during th e entire administrative adjudication that this Court is reviewing

. ” S ee Opinion 9

. But the “entire administrative adjudication” necessarily included the flawed 2018 ALJ D ecision and , pursuant to Lucia , ALJ Bright could not thereafter properly rule on Brooks’s disability benefits claim. b. Seeking to bolster the argument that ALJ Bright could properly review and again resolve Brooks’s case in 2019, the Commissioner also explains that, because Brooks did not raise an Appointments Clause challenge in her administrative appeal, the Appeals Council was under no obligation to send the case to a new ALJ when it vacated the 2018 ALJ Decision. We take no issue with that proposition. A nd, to be clear, we do not rule that the Appeals Council had a sua sp onte obligation to raise the Appointments Clause issue on Brooks’s behalf. What we reject, however, is the Commissioner’s representation that “there is no reason that Brooks is entitled to the special remedy of a hearing before a new ALJ, which is reserv ed as an incentive for those who flag uncorrected defects in the agency proceeding.” See Br. of Appellee 23. As we see it, Brooks did properly flag the Appointments Clause defect

— raising the issue in the district court

— and the Supreme Court settled t hat very question in her favor in the Carr decision. See 141 S. Ct. at 1356; see also supra note 6. Pursuant to Carr , Brooks “ma[de] a timely challenge to the USCA4 Appeal: 21-2048 Doc: 41 Filed: 02/22/2023 Pg: 15 of 1816 constitutional validity of the appointment of [the] officer who adjudicate[d] [her] case,” and she is therefore “entitled to [the] relief” established by Lucia

. See 138 S. Ct. at 2055.
2. The Commissioner separately maintains

— again adhering to the reaso ning of the district court

— that Lucia ’s remedy of a new hearing before a different ALJ is unnecessary and irrelevant in these circumstances , in that the Appeals Council actually vacated the 2018
ALJ D ecision on a merits

- based issue. As the Opinion expla ined, the Supreme Court fashioned the Lucia remedy in part “to create incentives to raise Appointments Clause challenges,” recognizing that if a constitutionally infirm ALJ decision were returned to the same adjudicator, “the old judge would have no reason to think he did anything wrong on the merits, and so could be expected to reach all the same judgments.” See 138 S. Ct. at
2055 n.5. T hat being so, the Commissioner maintains that the Appeals Council rendered
Lucia ’s remedy inapplicable by affirmatively advising ALJ Bright “ that something was substantively wrong in her prior decision” (regarding the first vocational expert’s testimony as to Brooks’s transferable job skills). See Br. of Appellee 21. This alternative contention falls flat fo r at least two sound reasons. First, the Appeals Council’s merits

- based vacatur simply is not relevant to Brooks’s Appointments Clause challenge. To be sure, the Lucia decision identified the aforementioned “incentivization” rationale as the general basi s for its chosen remedy, but it did not carve out any exception to the remedy’s necessity for the situation where a constitutionally infirm ALJ decision has been vacated on a merits

- related issue. To the contrary, the Court ruled

— in no uncertain terms

— that “[t]o cure the constitutional error, another ALJ .

. . must USCA4 Appeal: 21-2048 Doc: 41 Filed: 02/22/2023 Pg: 16 of 1817 hold the new hearing to which [the claimant] is entitled.” See 138 S. Ct. at 2055. Put differently, where an improperly appointed ALJ decides a claim in contravention of the Appointments C lause, the structural constitutional error will remain in place unless and until a different, properly appointed ALJ assesses and resolves the claim. A nd , a s Brooks persuasively argues, it would border on absurd to ignore a patent constitutional violation (and the remedy developed therefor) because of evidentiary defect s in the constitutionally flawed proceedings . A s the Ninth Circuit aptly put it , an Appointments Clause violation is “ no mere technicality or quaint formality” that can so easily be overlooked , in that such a violation “weakens our constitutional design

. ” See Cody , 48 F.4th at 960. The Commissioner’s position also fails because the Appeals Council’s merits

related vacatur of the 2018 ALJ D ecisi on does not fully eliminate the problem identified by the Lucia Court that, on remand, the same ALJ would be hard pressed to “consider the matter as though [she] had not adjudicated it before.” See 138 S. Ct. at 2055. B ecause ALJ Bright had already heard and decided the merits of Brooks’s disability benefits cl aim ,

a strong possibility remained that she would resolve the issue identified by the Appeals Council and , in the end, simply make the same ruling

. And that is precisely what happened here. ALJ Bright received new vocational evidence in the 2019 hearing , opted not to rest her decision on the issue of Brooks’s transferable job skills (instead resolving that Brooks could perform her past relevant work), a nd again denied Brooks ’s disability benefits claim

. USCA4 Appeal: 21-2048 Doc: 41 Filed: 02/22/2023 Pg: 17 of 1818 The nature of the Appeals Council’s vacatur in this case, in other words, does little to undermine the “incentivizing” purpose of Lucia ’s remedy. 7

* * * At bottom , the Lucia decision controls our resolution of this appeal. The Supreme
Court made clear that if an ALJ makes a ruling absent a proper constitutional appointment , and if the claimant interposes a timely Appointments Clause challenge, the appropriate remedy is for the claim to be reheard before a new decisionmaker. Brooks did not receive that remedy

. T he Appointments Clause violation as to Brooks was thus not cured, and the
2019 ALJ Decision was likewise rendered in contravention of th at Clause. Faithful to the Supreme Court’s Lucia ’s m andate , we are obliged to vacate and remand.

IV. Pursuant to the foregoing, we vacate the judgment of the district court and remand for the return of Brooks’s disability benefits claim to the Commissioner for a new and plenary hearing before a different and properly appointed ALJ.
VACATED AND REMANDED

7 Although the Commissioner does not argue the point, the district court explained that Lucia ’s new hearing and new ALJ assignment was not necessary in Brooks’s case because the Supreme Court had not frame d the remedy as “a bright

- line rule.” See Opinion 8. T he court deemed it significant that “[t]he Lucia Court explicitly acknowledged that it ‘do[es] not hold that a new officer is required for every Appointments Clause violation. ’ ” Id. But the Supreme Court in Lucia explain ed that it could “give [the] remedy here because other ALJs (and the [SEC]) are available to hear this case on remand” and that the remedy would be unavailable only if “there is no substitute decisionmaker.” See 138 S. Ct. at 2055 n.5. Nothing in this record indicates that “no substitute decisionmaker” is available to rehear Brooks’s disability benefits claim. Accordingly, we recognize that t his point has pro perly been abandoned by the Commissioner. USCA4 Appeal: 21-2048 Doc: 41 Filed: 02/22/2023 Pg: 18 of 18