Andrew Cirko v. Commissioner Social Security ( 2020 )


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  •                                   PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    ________________
    19-1772
    ________________
    ANDREW M. CIRKO, on behalf of
    Sandra L. Cirko, Deceased
    v.
    COMMISSIONER OF SOCIAL SECURITY,
    Appellant
    ________________
    19-1773
    ________________
    JOHN STEVEN BIZARRE, JR.
    v.
    COMMISSIONER SOCIAL SECURITY,
    Appellant
    ________________
    On Appeal from the United States District Court
    for the Middle District of Pennsylvania
    (D.C. Nos. 1-17-cv-00680, 1-18-cv-00048)
    District Judge: Honorable Christopher C. Conner
    ________________
    Argued November 13, 2019
    Before: AMBRO, KRAUSE, and BIBAS, Circuit Judges
    (Opinion filed: January 23, 2020)
    Daniel J. Aguilar, Esq.
    United States Department of Justice
    Civil Division
    Room 7266
    950 Pennsylvania Avenue, N.W.
    Washington, DC 20530
    Joshua M. Salzman [ARGUED]
    United States Department of Justice
    Room 7258
    950 Pennsylvania Avenue, N.W.
    Washington, DC 20530
    Counsel for Appellant
    Thomas D. Sutton [ARGUED]
    Leventhal Sutton & Gornstein
    3800 Horizon Boulevard
    Suite 101
    Trevose, PA 19053
    Counsel for Appellee
    2
    _________________________
    OPINION OF THE COURT
    _________________________
    KRAUSE, Circuit Judge.
    This case presents the question whether claimants for
    Social Security disability benefits must exhaust Appointments
    Clause challenges before the very administrative law judges
    (ALJs) whose appointments they are challenging. Because
    both the characteristics of the Social Security Administration
    (SSA) review process and the rights protected by the
    Appointments Clause favor resolution of such claims on the
    merits, we hold that exhaustion is not required in this context
    and therefore will affirm.
    I.     BACKGROUND
    The facts here are simple. After Appellees’—Andrew
    M. Cirko (on behalf of his late wife Sandra L. Cirko) and John
    Steven Bizarre—disability claims were denied by ALJs
    employed by the Social Security Administration, the Supreme
    Court held in Lucia v. SEC, 
    138 S. Ct. 2044
     (2018), that ALJs
    in the Securities and Exchange Commission (SEC) exercised
    “significant discretion” in carrying out “important functions”
    and were therefore required under the Appointments Clause,
    U.S. Const. art. II, § 2, cl. 2, to be appointed by the President,
    a court of law, or a head of department. Id. at 2053 (citation
    omitted). Because the ALJs of the SEC were not so appointed,
    the petitioner there was entitled to a new hearing before a
    different constitutionally appointed ALJ. See id. at 2055.
    3
    When Lucia was decided, Appellees here were already
    in the process of challenging the SSA’s denial of their claims
    in the District Court, and although they had not previously
    raised this claim, they immediately demanded new hearings on
    the ground that the ALJs of the SSA were likewise
    unconstitutionally appointed. In response to Lucia and in light
    of an executive order concluding that “at least some—and
    perhaps all—ALJs are ‘Officers of the United States’ and thus
    subject to the Constitution’s Appointments Clause,” Exec.
    Order No. 13,843, 
    83 Fed. Reg. 32,755
     (July 13, 2018), the
    Acting Commissioner of Social Security conceded the premise
    and in short order reappointed the agency’s administrative
    judges, including both the ALJs and the Administrative
    Appeals Judges (AAJs) of the SSA’s Appeals Council, under
    her own authority.1 Nonetheless, the Commissioner argued
    that Appellees were not entitled to relief because they had not
    previously presented their Appointments Clause challenges to
    their ALJs or the Appeals Council and thus had not exhausted
    those claims before the agency.
    In a comprehensive and analytically rigorous opinion,
    the District Court declined to require exhaustion, vacated the
    agency’s decisions, and remanded for new hearings before
    different, properly appointed ALJs. The Commissioner now
    appeals.
    1
    Acting Commissioner Nancy Berryhill, who took
    these actions, was replaced by Commissioner Andrew Saul on
    June 17, 2019. See Commissioner, Soc. Sec. Admin.,
    https://www.ssa.gov/agency/commissioner.html (last visited
    Dec. 28, 2019). Commissioner Saul represents the agency
    here.
    4
    II.    DISCUSSION2
    The Commissioner’s appeal requires us to decide
    whether SSA claimants may raise Appointments Clause
    challenges in federal court without having exhausted those
    claims before the agency. The Commissioner argues, based on
    Supreme Court case law and our precedent, that the general
    rule of exhaustion applies in these circumstances so the District
    Court should have dismissed Appellees’ appeals.3 As
    explained below, we disagree.
    2
    The District Court had jurisdiction under 
    42 U.S.C. § 405
    (g). We have appellate jurisdiction under 
    28 U.S.C. § 1291
    . We review the District Court’s legal rulings de novo.
    Schaudeck v. Comm’r of Soc. Sec. Admin, 
    181 F.3d 429
    , 431
    (3d Cir. 1999).
    3
    We use “exhaustion” in this opinion to mean issue
    exhaustion, i.e., a requirement that claimants “raise specific
    issues . . . to reserve them for review in federal court.” Sims v.
    Apfel, 
    530 U.S. 103
    , 113 (2000) (O’Connor, J., concurring in
    part and concurring in the judgment). Like the Court in Sims,
    which also addressed issue exhaustion, we rely upon McCarthy
    for guidance, 
    id.,
     even though McCarthy dealt with the issue of
    administrative exhaustion—i.e., the rule warning claimants
    that “completely failing” to seek relief through the agency
    process will “forfeit the right to seek judicial review,” 
    id.
    (citing 
    20 C.F.R. § 404.900
    (b)). Nothing in this opinion,
    however, should be taken to suggest that SSA claimants are
    relieved entirely from the administrative-exhaustion
    requirement so understood, nor do we opine on any issue-
    5
    The Commissioner concedes that there is no statutory
    or regulatory exhaustion requirement that governs SSA
    proceedings. Thus, whether we should impose an exhaustion
    requirement here “is a matter of sound judicial discretion.”
    Cerro Metal Prods. v. Marshall, 
    620 F.2d 964
    , 970 (3d Cir.
    1980). To determine whether to impose an exhaustion
    requirement where we have not done so before, we must assess
    (a) the “nature of the claim presented,” (b) the “characteristics
    of the particular administrative procedure provided,” and
    (c) the proper “balance [between] the interest of the individual
    in retaining prompt access to a federal judicial forum [and]
    countervailing institutional interests favoring exhaustion.”
    McCarthy v. Madigan, 
    503 U.S. 140
    , 146 (1992). As
    explained below, each of these three considerations supports
    the conclusion that exhaustion of Appointments Clause claims
    is not required in the SSA context.
    A. The Nature of Appointments Clause Claims Does
    Not Favor Exhaustion
    We begin with the “nature of [Appellees’] claim.” See
    McCarthy, 
    503 U.S. at 146
    . As a general matter, exhaustion is
    appropriate for certain claims involving “exercise of the
    agency’s discretionary power or when the agency proceedings
    in question allow the agency to apply its special expertise.” 
    Id. at 145
    . But exhaustion is generally inappropriate where a
    claim serves to vindicate structural constitutional claims like
    Appointments Clause challenges, which implicate both
    individual constitutional rights and the structural imperative of
    exhaustion requirement in this context beyond Appointments
    Clause challenges, as that is the question before us today.
    6
    separation of powers. Glidden Co. v. Zdanok, 
    370 U.S. 530
    ,
    536–37 (1962).
    The importance of the Appointments Clause has been
    recognized since our nation’s founding. In the colonial system,
    appointments were distributed in “support of a despicable and
    dangerous system of personal influence,” The Federalist
    No. 77, at 421 (Alexander Hamilton) (E.H. Scott ed., 1894),
    that enabled officers to “harass our people, and eat out their
    substance,” The Declaration of Independence para. 12 (U.S.
    1776). Indeed, the “power of appointment to offices” was seen
    in the Founding Era as “the most insidious and powerful
    weapon of eighteenth century despotism.” Freytag v. Comm’r,
    
    501 U.S. 868
    , 883 (1991) (quoting Gordon S. Wood, The
    Creation of the American Republic 1776–1787 79, 143
    (1969)). By requiring that all “Officers of the United States”
    be appointed by the president, a head of department, or a court
    of law, see U.S. Const. art. II, § 2, cl. 2, our Founders sought
    to replace that “despicable and dangerous system,” The
    Federalist No. 77, supra, at 421, with one that favored political
    accountability and neutrality, and our Supreme Court has
    upheld the protection of the Clause in various cases for the
    express purpose of “protec[ting] individual liberty,” NLRB v.
    Noel Canning, 
    573 U.S. 513
    , 571 (2014) (Scalia, J.,
    concurring) (citation omitted), and upholding the “principle of
    separation of powers,” Buckley v. Valeo, 
    424 U.S. 1
    , 121
    (1976).
    An individual litigant need not show direct harm or
    prejudice caused by an Appointments Clause violation. As the
    D.C. Circuit has noted, “it will often be difficult or impossible
    for someone subject to a wrongly designed scheme[, including
    an Appointments Clause violation,] to show that the design—
    the structure—played a causal role in his loss.” Landry v.
    7
    FDIC, 
    204 F.3d 1125
    , 1131 (D.C. Cir. 2000). But this
    difficulty to show direct harm does not diminish the important
    individual liberty safeguarded by the Appointments Clause.
    Such harm is presumed.
    Two cases recognizing these principles, Lucia and
    Freytag, bear heavily on our decision today. In Lucia, where
    the Court held that the ALJs of the SEC were
    unconstitutionally appointed, it ordered the agency to provide
    the petitioner with a new hearing before a constitutionally
    appointed ALJ different from the original ALJ, explaining that
    the petitioner had made a “timely challenge” by contesting the
    validity of the ALJ’s appointment at the agency appeals level—
    though not, apparently, before the ALJ himself. 
    138 S. Ct. at
    2053–54, 55. And while the Lucia Court did not expound on
    what made the challenge “timely,” it did cite Freytag, where the
    Court had declined to enforce exhaustion in the Appointments
    Clause context. See 
    id.
     at 2053–54 (citing Freytag, 
    501 U.S. at
    871–82).
    In Freytag, the petitioners not only “fail[ed] to raise a
    timely objection to the assignment of their cases to [the] judge”
    they claimed was unconstitutionally appointed, but they also
    affirmatively “consent[ed] to the assignment.” 
    501 U.S. at 878
    . “[A]s a general matter,” the Court acknowledged, “a
    litigant must raise all issues and objections at trial.” 
    Id. at 879
    .
    Yet, it explained, “the disruption to sound appellate process
    entailed by entertaining objections not raised below does not
    always overcome . . . the strong interest of the federal judiciary
    in maintaining the constitutional plan of separation of powers.”
    
    Id.
     (internal quotation marks and citation omitted). And given
    the strength of that interest in an Appointments Clause claim,
    the Court excused exhaustion and heard the challenge on the
    merits. 
    Id. at 880
    .
    8
    As the Commissioner here emphasizes, neither Lucia
    nor Freytag map perfectly onto our case: The former
    addressed a different agency and a claimant who raised the
    Appointments Clause challenge at least on administrative
    appeal, 
    138 S. Ct. at 2050
    ; and the latter also addressed a
    different agency, and it excused the petitioner’s failure to
    exhaust rather than holding that there was no exhaustion
    requirement in the first instance, 
    501 U.S. at
    878–80. But these
    cases guide us as we chart our course by instructing that
    Appointments Clause challenges—given their importance to
    separation of powers and, ultimately, individual liberty—are
    claims for which a hearing on the merits is favored.
    B. The Characteristics of SSA Review Counsel Against
    Requiring Exhaustion for This Claim
    We turn next to the “characteristics of the particular
    administrative procedure provided here.” McCarthy, 
    503 U.S. at 146
    . We are guided by the teaching of Sims v. Apfel, 
    530 U.S. 103
     (2000), the Supreme Court’s most recent
    pronouncement on issue exhaustion in SSA proceedings.
    In Sims, the Supreme Court resolved a question closely
    analogous to this one: whether claimants must exhaust issues
    before the SSA’s Appeals Council to obtain judicial review of
    those claims. See 
    530 U.S. at 107
     (plurality opinion); 
    id. at 113
    (O’Connor, J., concurring in part and concurring in the
    judgment). The Court based its holding on two unusual
    features of the SSA review process: first, the Court emphasized
    that because no SSA regulations required exhaustion to the
    Appeals Council, imposing an “additional requirement[]” of
    exhaustion would penalize claimants who did “everything that
    the agency asked,” see 
    id. at 114
     (O’Connor, J., concurring in
    part and concurring in the judgment); second, the Court
    9
    explained that the inquisitorial nature of Appeals Council
    hearings rendered the case for exhaustion “much weaker”
    because the AAJs did not rely upon the parties “to develop the
    issues in an adversarial administrative proceeding” anyway,
    see 
    id.
     at 109–10 (plurality opinion).4 For those reasons
    together, the Court declined to require claimants to exhaust
    claims before the Appeals Council.5 See 
    id.
     at 109–10
    (plurality opinion). The Court noted, however, that “[w]hether
    a claimant must exhaust issues before [an] ALJ is not before
    us,” leaving that question for a case in which it was squarely
    presented. 
    Id. at 107
     (plurality opinion).
    4
    The Court here consisted of the plurality plus Justice
    O’Connor’s concurrence. See 
    530 U.S. at 104
    . Under the rule
    of Marks v. United States, 
    430 U.S. 188
    , 193–94 (1977)
    (holding that the narrowest opinion of a fragmented Court
    controls), Justice O’Connor’s analysis—which joined the
    portions of the plurality’s opinion cited here—controls. See
    Sims, 
    530 U.S. at 113
     (O’Connor, J., concurring in part and
    concurring in the judgment) (joining Parts I and II-A of
    plurality opinion).
    5
    As discussed further below, see infra n.11, these
    unique characteristics of the SSA, particularly the lack of any
    statutory or regulatory issue-exhaustion requirements, are what
    separate this case from other post-Lucia decisions holding that
    plaintiffs’ Appointments Clause challenges to ALJs of other
    agencies are forfeited because they failed to raise them before
    the agency. See, e.g., Island Creek Coal Co. v. Bryan, 
    937 F.3d 738
    , 746, 749 (6th Cir. 2019) (Department of Labor); Malouf
    v. SEC, 
    933 F.3d 1248
    , 1258 (10th Cir. 2019) (SEC).
    10
    That is the case before us today as concerns
    Appointments Clause challenges. And while Sims does not
    dictate the answer, its lessons loom large. Like Appeals
    Council hearings, ALJ hearings have no express exhaustion
    requirement.6 See, e.g., McWilliams v. Berryhill, No. 18-5180,
    
    2019 WL 2615750
    , at *8 (E.D. Pa. June 26, 2019) (“No matter
    how tortured the reading, the SSA regulations fail to squarely
    address [exhaustion].”). And like Appeals Council hearings,
    ALJ hearings are inquisitorial and driven by the agency rather
    than the claimant: Whereas ALJs must “look[] fully into the
    issues,” “[a]ccept[] as evidence any documents that are
    material to the issues,” and “decide when the evidence will be
    presented and when the issues will be discussed,” 
    20 C.F.R. § 404.944
    , claimants need not even state their case or present
    written arguments, see 
    id.
     § 404.949. The two rationales
    driving Sims thus generally apply to ALJs no less than AAJs,
    so the “characteristics of the particular administrative
    procedure provided here,” McCarthy, 
    503 U.S. at 146
    , likewise
    cut against an exhaustion requirement for Appointments
    Clause challenges.
    C. A Balancing of the Individual and Governmental
    Interests Weighs Against Exhaustion
    With these points in mind, we turn to our ultimate task
    of “balanc[ing] the interest of the individual in retaining
    prompt access to a federal judicial forum against
    countervailing institutional interests favoring exhaustion.”
    McCarthy, 
    503 U.S. at 146
    . This consideration too counsels
    against an exhaustion requirement.
    6
    The Commissioner concedes this point.
    11
    1. The Individual Interest Is High
    We begin with the individual interest. As we have
    explained, the Appointments Clause is aimed at more than an
    abstract division of labor between the branches of government:
    “The structural principles secured by the separation of powers
    protect the individual as well,” Bond v. United States, 
    564 U.S. 211
    , 222 (2011), so a citizen’s ability to enforce it through a
    merits hearing is critical to “protec[ting] individual liberty,”
    Noel Canning, 573 U.S. at 571 (Scalia, J., concurring). Yet
    that ability would be severely compromised in two respects
    were exhaustion required here.
    First, an exhaustion requirement for Appointments
    Clause claims would impose an unprecedented burden on SSA
    claimants who are subject, not to an adversarial process, but to
    an inquisitorial review process. While exhaustion may be
    broadly required in an agency where “it is usually ‘appropriate
    under [the agency’s] practice’ for ‘contestants in an adversary
    proceeding’ before it to develop fully all issues there,” Sims,
    
    530 U.S. at 109
     (alteration in original) (quoting United States
    v. L.A. Tucker Truck Lines, Inc., 
    344 U.S. 33
    , 36–37 (1952)),
    the SSA’s inquisitorial system does not fit that description. In
    the SSA, “[t]he [agency], not the claimant, has primary
    responsibility for identifying and developing the issues,” Sims,
    
    530 U.S. at 112
    , such that the ALJ takes “an active
    investigatory role” and “shoulders a statutory obligation to
    obtain evidence,” “to order medical testing,” and “to request
    witnesses,” Jon C. Dubin, Torquemada Meets Kafka: The
    Misapplication of the Issue Exhaustion Doctrine to
    Inquisitorial Administrative Proceedings, 
    97 Colum. L. Rev. 1289
    , 1303 (1997). And while the ALJ plays a starring role—
    authorized even to subpoena witnesses of their own accord,
    12
    
    20 C.F.R. § 404.950
    (d)—the claimant may choose to play a bit
    part and still have his claim determined. After all, claimants
    are not required to develop facts, let alone make legal
    arguments. See Dubin, supra, at 1302–04. Requiring
    exhaustion in this case would upend this arrangement by
    forcing claimants—despite the informal, non-adversarial
    nature of the review process—to root out a constitutional claim
    even beyond the power of the agency to remedy, or
    alternatively risk forfeiture.
    Second, an exhaustion requirement would prejudice
    those claimants who go unrepresented at their ALJ hearings
    and then, perhaps with the benefit of counsel, seek to raise such
    a claim in federal court.7 These pro se claimants already face
    “a disadvantage in the unfamiliar world of law because they
    lack the specialized training of attorneys” and struggle to
    recognize technical legal claims like the Appointments Clause
    claims here.8 Pilgrim v. Littlefield, 
    92 F.3d 413
    , 418 (6th Cir.
    1996). Requiring exhaustion would make the consequences of
    7
    Notably, a large percentage—roughly thirty percent—
    of claimants go unrepresented at their ALJ hearings. See Social
    Security Administration (SSA) Annual Data for Representation
    at Social Security Hearings, Soc. Sec. Admin. (May 23, 2018),
    https://www.ssa.gov/open/data/representation-at-ssa-
    hearings.html.
    8
    See also Faretta v. California, 
    422 U.S. 806
    , 835
    (1975) (noting “the dangers and disadvantages of self-
    representation”); Higgs v. Att’y Gen., 
    655 F.3d 333
    , 340 (3d
    Cir. 2011) (“Pro se pleadings are often submitted by
    individuals with limited skills and technical expertise in the
    law.”).
    13
    that disadvantage irreparable by precluding these claimants
    from vindicating their rights under the Appointments Clause in
    federal court proceedings. And we have little reason to think
    those rights will elsewhere be vindicated: While ALJs must
    probe for meritorious arguments more carefully where
    claimants are unrepresented, Reefer v. Barnhart, 
    326 F.3d 376
    ,
    380 (3d Cir. 2003), even the most diligent ALJ is unlikely to
    raise a sua sponte objection to his own appointment.
    The need to protect those individual rights is especially
    acute, however, where, as here, claimants’ “physical condition
    and dependency on the disability benefits” are at
    issue. Mathews v. Eldridge, 
    424 U.S. 319
    , 331 (1976).
    Disability benefits are usually claimants’ primary source of
    income9—highlighting the need for both the appearance and
    reality of fair adjudicators appointed impartially under the
    Appointments Clause and making the “nature of [a disability]
    claim” an “important factor[]” in determining whether to take
    federal jurisdiction over a procedurally flawed administrative
    appeal, 
    id.
     at 331 n.11. Indeed, we have said that in such cases
    “the claimant’s interest in having the constitutional issue
    resolved promptly is so great that further deference to agency
    procedures is inappropriate.” Mattern v. Mathews, 
    582 F.2d 248
    , 253 (3d Cir. 1978).
    In short, the individual interest in Appellees’
    Appointments Clause challenge being heard on the merits is
    high, and an exhaustion requirement would seriously erode it.
    9
    See Michelle Stegman Bailey & Jeffrey Hemmeter,
    Characteristics of Noninstitutionalized DI and SSI Program
    Participants, 2010 Update, tbl. 4 (2014).
    14
    2. The Governmental Interest Is Low
    The Government’s interest in requiring exhaustion here,
    on the other hand, is negligible at best. Traditionally, two
    governmental interests favor exhaustion: deference to agency
    expertise and opportunity for agency error correction. Neither
    is implicated here.
    The first, deference to agency expertise, is rendered
    irrelevant here by the well-worn maxim that constitutional
    questions, including Appointments Clause challenges, are
    “outside the [agency’s] competence and expertise.”10 Free
    Enter. Fund v. Pub. Co. Accounting Oversight Bd., 
    561 U.S. 477
    , 491 (2010). “[C]ourts are at no disadvantage in
    answering” Appointments Clause claims, 
    id.,
     and the
    10
    The Commissioner cites Elgin v. Department of
    Treasury, 
    567 U.S. 1
     (2012), for the proposition that claimants
    must exhaust constitutional challenges even if the agency lacks
    authority to decide them. But that argument relies upon a
    patent misreading of Elgin, which neither dealt with exhaustion
    nor remarked upon the agency’s competence to hear
    constitutional claims. See 
    id.
     at 16–17. The Commissioner
    also contends that the Appointments Clause challenge here is
    not materially different than a claim for an ALJ’s recusal,
    which we held in Ginsburg v. Richardson, 
    436 F.2d 1146
     (3d
    Cir. 1971), was waived when it had not been raised before the
    agency. 
    Id. at 1152
    . But in Ginsburg the claimant failed to
    follow the “proper procedure” provided by agency regulations
    for seeking recusal, and that relief, had she followed the
    procedure, was one the ALJ was capable of providing. 
    Id. at 1152
    , 1152 n.4. That is not the case here, so Ginsburg does
    not control.
    15
    Commissioner therefore has no legitimate basis to argue that
    agency expertise requires that those claims be exhausted before
    the agency.
    The second traditional rationale for exhaustion is no
    more applicable. We need not give an agency the opportunity
    for error correction that it is incapable of providing—i.e.,
    where it is not “empowered to grant effective relief.” See
    McCarthy, 
    503 U.S. at 147
    . This case falls squarely in that
    category: At neither the trial nor the appellate levels could the
    SSA’s administrative judges cure the constitutionality of their
    own appointments, whether by reappointing themselves, see
    Lucia, 
    138 S. Ct. at 2051
     (explaining that “the President, a
    court of law, or a head of department” must appoint ALJs), or
    by transferring the case to a constitutionally appointed ALJ,
    see Appellant’s Br. 6 (conceding that all SSA ALJs were
    unconstitutionally appointed prior to Lucia).
    The Commissioner urges an error-correction theory
    whereby ALJs presented with an Appointments Clause
    challenge might “note[] their concerns regarding the
    constitutionality of their appointments” to the Commissioner,
    eventually “enabling the Commissioner to take corrective
    action.” Appellant’s Br. 21 (citing L.A. Tucker, 
    344 U.S. at
    36–37). But the Supreme Court rejected this exact argument
    in Mathews v. Eldridge, where it observed that “[i]t is
    unrealistic to expect that the Secretary would consider
    substantial changes in the current administrative review system
    at the behest of a single aid recipient raising a constitutional
    challenge in an adjudicatory context,” particularly as “[t]he
    Secretary would not be required even to consider such a
    challenge.” 424 U.S. at 330; see also McNeese v. Bd. of Educ.,
    
    373 U.S. 668
    , 675–76 (1963) (refusing to require state-court
    exhaustion where theory of relief there was “tenuous”). So too
    16
    here, where the Commissioner himself concedes that claimants
    have “no access . . . to the [C]ommissioner directly.”11 Tr. 7:4–
    6. Thus, the only avenues then available to claimants to seek a
    remedy—hearings before ALJs or AAJs—were incapable of
    providing it, and we decline to adopt the Commissioner’s
    attenuated and speculative theory of relief.12
    11
    That alone distinguishes this case from the out-of-
    Circuit authority on which the Commissioner relies where the
    challengers, in fact, could have obtained relief from the
    agency. That is true of both the SSA cases he cites outside the
    Appointments Clause context, see Shaibi v. Berryhill, 
    883 F.3d 1102
    , 1109 (9th Cir. 2017) (challenge to vocational expert’s
    methods); Anderson v. Barnhart, 
    344 F.3d 809
    , 814 (8th Cir.
    2003) (challenge to evidentiary ruling); Mills v. Apfel, 
    244 F.3d 1
    , 8 (1st Cir. 2001) (same), and the Appointments Clause cases
    he cites outside the SSA context, see Energy W. Mining Co. v.
    Lyle, 
    929 F.3d 1202
    , 1206 (10th Cir. 2019); Jones Bros., Inc.
    v. Sec’y of Labor, 
    898 F.3d 669
    , 677 (6th Cir. 2018); In re
    DBC, 
    545 F.3d 1373
    , 1379 (Fed Cir. 2008). But it is not true
    here, at the intersection of those two spheres, where the only
    agency actors to whom the challengers had access—the
    administrative judges themselves—lacked authority to provide
    a remedy.
    12
    We note the likely futility of claimants raising such
    concerns in those venues because the SSA was aware that the
    ALJ appointments might be rendered unconstitutional by the
    Supreme Court yet declined to take corrective action until well
    after Lucia was decided. See Soc. Sec. Admin., EM-18003:
    Important Information Regarding Possible Challenges to the
    17
    Unable to invoke either of the two traditional
    exhaustion rationales, the Commissioner asserts a third: that an
    adverse ruling would open the floodgates to the “many
    hundreds of cases in federal district courts in which
    disappointed claimants have sought to raise unpreserved
    Appointments Clause challenges for the first time.”
    Appellant’s Br. 27. And those cases, we are told, are “just the
    tip of the iceberg” because ALJs issued 493,000 appealable
    dispositions in fiscal year 2018 and, without an exhaustion
    requirement, “every disappointed claimant could obtain a do-
    over before a new ALJ simply by raising a Lucia claim in
    district court.” Appellant’s Br. 28.
    But we deal in facts, not hyperbole, and, on inspection,
    the purported flood is actually a trickle. Under the applicable
    procedural rules, claimants must appeal the Appeals Council’s
    decision to the District Court within sixty days, 
    42 U.S.C. § 405
    (g), and Lucia was decided more than a year ago, 
    138 S. Ct. at 2044
    . That means every claimant whose benefits were
    denied prior to Lucia has long since either filed an appeal in
    district court or become time-barred from doing so. Those
    whose claims were still at the initial stage will have their claims
    adjudicated by a constitutionally appointed ALJ. And the SSA,
    in the meantime, has promulgated administrative guidance
    instructing that claimants with cases then pending on
    administrative appeal would have their claims reviewed de
    novo before the now-duly-appointed Appeals Council.13 The
    Appointment of Administrative Law Judges in SSA’s
    Administrative Process 1–2 (effective Jan. 30, 2018).
    13
    See SSR 19-1p; Titles II & XVI: Effect of the
    Decision in Lucia v. Securities and Exchange Commission
    18
    effect of our decision today, then, is limited to the hundreds
    (not hundreds of thousands) of claimants whose cases are
    already pending in the district courts, a drop in the bucket
    relative to the thousands of claims that the SSA has voluntarily
    ordered (and thus apparently has the resources enabling) the
    Appeals Council to review.
    In sum, there is little legitimate governmental interest in
    requiring exhaustion here. And, as we have explained, the
    individual interests on the other side of the ledger are
    substantial. For those reasons, and considering the special
    character of both the agency and the constitutional claim at
    issue, we decline to require exhaustion.
    III.   CONCLUSION
    For the foregoing reasons, we will affirm the judgment
    of the District Court and remand these consolidated cases to
    the Social Security Administration for new hearings before
    constitutionally appointed ALJs other than those who presided
    over Appellees’ first hearings.
    (SEC) On Cases Pending at the Appeals Council, 
    84 Fed. Reg. 9582
    –9583 (Mar. 15, 2019).
    19