Streich v. Saul

S
     20-1159-cv
     Streich v. Saul

                                UNITED STATES COURT OF APPEALS
                                    FOR THE SECOND CIRCUIT

                                              SUMMARY ORDER

     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.
     CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS
     PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A
     SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
     MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE
     (WITH THE NOTATION “SUMMARY ORDER”).       A PARTY CITING TO A
     SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
     REPRESENTED BY COUNSEL.

 1         At a stated term of the United States Court of Appeals for the Second Circuit,
 2   held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
 3   City of New York, on the 5th day of May, two thousand twenty-one.
 4
 5           PRESENT: RAYMOND J. LOHIER, JR.,
 6                            RICHARD J. SULLIVAN,
 7                            JOSEPH F. BIANCO,
 8                                    Circuit Judges.
 9           ------------------------------------------------------------------
10           JACQUELINE L. STREICH,
11
12                     Plaintiff-Appellant,
13
14                      v.                                                        20-1159-cv
15
16           ANDREW M. SAUL, COMMISSIONER OF
17           SOCIAL SECURITY,
18
19                   Defendant-Appellee.
20           ------------------------------------------------------------------
 1
 2         FOR PLAINTIFF-APPELLANT:                CAROLYN A. KUBITSCHEK, Lansner &
 3                                                 Kubitschek, New York, NY
 4
 5         FOR DEFENDANT-APPELLEE:                 ARIELLA ZOLTAN, Special Assistant
 6                                                 United States Attorney (Ellen E.
 7                                                 Sovern, Regional Chief Counsel —
 8                                                 Region II, on the brief), Office of the
 9                                                 General Counsel, United States
10                                                 Social Security Administration, New
11                                                 York, NY, for Leonard C. Boyle,
12                                                 Acting United States Attorney for
13                                                 the District of Connecticut, New
14                                                 Haven, CT

15         Appeal from a judgment of the United States District Court for the District

16   of Connecticut (Robert A. Richardson, Magistrate Judge).

17         UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

18   AND DECREED that the judgment of the District Court is VACATED and

19   REMANDED.

20         Plaintiff Jacqueline Streich appeals from a February 6, 2020 judgment of

21   the United States District Court for the District of Connecticut (Richardson, M.J.)

22   that in relevant part affirmed the decision of the Commissioner of Social Security

23   to deny Streich’s claim for disability insurance benefits. Among other

24   arguments, Streich contended that the Administrative Law Judge (ALJ) who

                                              2
 1   heard and decided her case for benefits was not properly appointed under the

 2   Appointments Clause of the United States Constitution, Art. II, § 2, cl. 2.

 3   Although there is no dispute that the ALJ was not properly appointed until eight

 4   months after deciding Streich’s claim for benefits, the District Court nevertheless

 5   rejected Streich’s Appointments Clause challenge as untimely because Streich

 6   never raised the issue during the administrative proceeding itself. See Streich v.

 7   Berryhill, No. 3:18-CV-1977 (RAR), 

2020 WL 563373

, *2–3 (D. Conn. Feb. 5, 2020).

 8         While this appeal was pending, the Supreme Court decided Carr v. Saul,

 9   

141 S. Ct. 1352

(2021). The Court held that a claimant does not forfeit her

10   Appointments Clause challenge by failing to raise it first before an ALJ.

Id. at

11 1360–62.

In light of Carr, we conclude, and the Commissioner agrees, that the

12   District Court erred in requiring that Streich administratively exhaust her

13   Appointments Clause challenge before she could raise it in federal court. We

14   also conclude that Streich is entitled to a hearing and de novo decision before a

15   different, properly appointed ALJ. See Lucia v. SEC, 

138 S. Ct. 2044

, 2055

16   (2018). Because we remand for a new hearing, and because there appears to

17   have been conflicting evidence in the record relating to the merits of Streich’s


                                              3
1   claim for disability insurance benefits, we decline to address Streich’s other

2   arguments concerning the merits, as to which we express no view.

3         For the foregoing reasons, the judgment of the District Court is VACATED

4   and we REMAND with instructions to remand the matter to the Commissioner

5   for a new hearing before a properly appointed ALJ other than the ALJ who

6   presided over Streich’s original hearing.

7

8                                          FOR THE COURT:
9                                          Catherine O’Hagan Wolfe, Clerk of Court




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