Barbara Rush v. Kilolo Kijakazi, 65 F.4th 114

Appellants (Rush, Parker, Nwobi) had disability claims denied by SSA ALJs whose appointments were ratified by Acting Commissioner Nancy Berryhill.
Berryhill became Acting SSA Commissioner on Inauguration Day 2017 under an Obama order of succession and served initially as DCO pursuant to the FVRA.
FVRA § 3346(a)(1) permits acting service for 210 days (300 days for transition vacancies); Berryhill’s initial period expired November 16, 2017; GAO reported noncompliance and she stepped down.
After President Trump nominated Andrew Saul in April 2018, Berryhill resumed acting service under § 3346(a)(2) (service while a nomination is pending) and in July 2018 ratified ALJ appointments later denying appellants’ claims.
Appellants challenged Berryhill’s authority, arguing § 3346(a)(2) only tolls (a)(1) and cannot authorize acting service if (a)(1) already expired; district courts rejected this and granted summary judgment to the government.
The Fourth Circuit affirmed, holding § 3346(a)(1) and (a)(2) are disjunctive and independent; Berryhill properly served and the ALJ appointments were valid.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether 5 U.S.C. § 3346(a)(2) authorizes acting service when a nomination is submitted after § 3346(a)(1)’s 210-day period expired	(Appellants) § 3346(a)(2) is only a tolling provision; acting service during a pending nomination is allowed only if the nomination occurred within the initial 210 days, so Berryhill’s later service was unauthorized	(Govt) The statute uses disjunctive “or”; (a)(2) creates an independent period of acting service from the date a nomination is submitted while it is pending, regardless of (a)(1)’s expiration	Court holds (a)(1) and (a)(2) are independent; § 3346(a)(2) authorized Berryhill’s acting service and her ALJ ratifications were valid

Lucia v. SEC, 138 S. Ct. 2044 (2018) (ALJs are inferior officers requiring constitutional appointment)
Carr v. Saul, 141 S. Ct. 1352 (2021) (discussing SSA ALJ appointment issues post-Lucia)
NLRB v. SW Gen. Inc., 580 U.S. 288 (2017) (overview of the FVRA and its time limits)
Reiter v. Sonotone Corp., 442 U.S. 330 (1979) (ordinary meaning of “or” as disjunctive)
United States v. Woods, 571 U.S. 31 (2013) (ordinary use of “or” separates independent meanings)
Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021) (textualist approach to statutory interpretation)
Russello v. United States, 464 U.S. 16 (1983) (statutory omissions imply intent)
TRW Inc. v. Andrews, 534 U.S. 19 (2001) (avoid interpreting statutes to render language superfluous)
Seila Law LLC v. CFPB, 140 S. Ct. 2183 (2020) (executive appointment and removal powers)