NCLA Discourages Supreme Courtroom from Upholding “Situation Exhaustion” in Social Safety Advantages Circumstances

Washington, DC, Jan. 4, 2021 (GLOBE NEWSWIRE) – The New Civil Liberties Alliance, a non-partisan, nonprofit civil rights group, filed a joint lawsuit today Friend of the court Briefing with the Cato Institute at the US Supreme Court on the consolidated cases of Willie Earl Carr et al. v. Andrew M. Saul, Social Security Commissioner, and John J. Davis et al. v. Andrew M. Saul, Social Security Commissioner. The case concerns the question of whether applicants who apply for a disability pension under the Social Insurance Act have to “exhaust” the constitutional challenges for their performance assessments before an administrative judge (ALJ) at the Social Security Administration (“SSA”) in order to be subject to a judicial review to receive this matter on subsequent appeal in federal court.

In particular, the petitioners did not contest the constitutionality of their ALJ’s appointments during their respective ALJ hearings, but instead filed a constitutional contestation of the appeal before a district court. The Eighth and Tenth US Appeals Courts closed the doors of the courthouse on the Petitioners’ Appointments Clause Appeals, ruling that “exhaustion of the problem” precluded a challenge that was not first brought before the ALJ.

In the decision of the Supreme Court of June 2018 in Lucia v Securities and Exchange Commission (SEC)The court ruled that the SEC judges are “United States officers” who must be appointed by the president or the head of a department under the appointment clause. In August 2018, in direct response to Lucia, the SSA chief ratified the appointments of all Social Security ALJs (appointed by a lesser official).

No federal law prohibits petitioners and related social security applicants from bringing claims in federal court that they did not first make in a social security ALJ. The SSA is, however, calling on the Supreme Court to enact a rule that forfeits the constitutional rights of applicants for “regulatory” reasons. Like other prudential regulations, judge exhaustion is designed to enhance the efficiency of the judiciary, provide courts and litigants with the benefit of an agency’s expertise, and produce a record for judicial review. However, the refusal of the lower courts to examine claims under the clause on the appointment of petitioners did not advance any of these purposes.

The lower courts need clear guidance on when – or whether – courts can decline their jurisdiction to rule on legal issues that do not depend on an agency’s expertise, judgment or determination. In the joint statement by NCLA and Cato, the Supreme Court is requested to reverse the appellate courts and return these cases to the lower courts for examination.

NCLA published the following statements:

Exhaustion rules established by judges lead courts to abandon their judicial responsibility by closing the doors of the courthouse to anyone who has legal problems with the structure and authority of administrative authorities. The NCLA calls on the Supreme Court to ensure that the lower courts hear these cases on the merits, thereby fulfilling their constitutional role as control of administrative overreach.

– Jared McClain, represented by NCLA

“It makes no sense to state that an applicant for social security benefits waives his or her right to assert constitutional claims in federal court if he does not“ exhaust ”the claims by first asserting them during administrative proceedings. The law encourages applicants to ask questions before an agency if the administrative judge has some expertise. But social security ALJs have absolutely no expertise in constitutional matters. “

– Richard Samp, Senior Litigation Counsel, NCLA


NCLA is an impartial, non-profit civil rights group founded by the well-known legal scholar Philip Hamburger to protect constitutional freedoms from violations by the administrative state. NCLA’s public interest litigation and other pro bono advocacy groups aim to tame the unlawful power of state and federal agencies and promote a new movement for civil liberties that will help restore Americans’ fundamental rights.


Judy Pino New Civil Liberties Alliance 202-869-5218 [email protected]

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