IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JULIO ANGEL ROSA, : CIVIL ACTION : v. : : KILOLO KIJAKAZI, : Acting Commissioner of the Social : Security Administration : NO. 20-5543

MEMORANDUM

CAROL SANDRA MOORE WELLS UNITED STATES MAGISTRATE JUDGE August 6, 2021

Julio A. Rosa (“Plaintiff”) seeks judicial review, pursuant to

(g), of the final decision of the Commissioner of the Social Security Administration (“the Commissioner”). In his request for review, Plaintiff raises an alleged violation of the federal constitution’s Appointments Clause (U.S. Const. art. II, § 2, cl. 2), based upon Lucia v. S.E.C.,

(2018). In Lucia, the U.S. Supreme Court held that the Security and Exchange Commission’s Administrative Law Judges (“ALJs”) were inferior officers of the United States, hence, the Appointments Clause required that they be appointed by the President, a court of law, or a head of department.

. Plaintiff’s argument is that Social Security ALJs are also inferior officers and that his ALJ was not properly appointed prior to his hearing on July 31, 2017. Pl.’s Br. at 1 and 4-5. The Commissioner has filed a motion to remand this case, conceding that Plaintiff’s claim is warranted. The Commissioner requests that this Court remand so the Appeals Council can refer Plaintiff’s case to a different ALJ to further evaluate her claims. The Third Circuit has decided that Social Security claimants have no duty to present their Appointments Clause challenges to ALJs or the Appeals Council. Cirko v. Comm’r of Soc. Sec.,

(3d Cir. 2020). Because Plaintiff was not required to present his Appointments Clause challenge to the ALJ or the Appeals Council, he did not forfeit the claim by failing to do so. The appropriate remedy for the conceded Appointments Clause violation in this case is to remand the case to the Commissioner so that it can be re-assigned to a properly-appointed ALJ,1 other than the ALJ who heard Plaintiff’s case.

.

An implementing Order follows.

1 Shortly after Lucia was decided, the Commissioner reappointed all ALJs in conformity with the Appointments Clause. Cirko,

.