62 F.4th 424
8th Cir.2023Background
- Brian Dahle appealed denial of SSA disability benefits, arguing the ALJ lacked authority because Acting Commissioner Nancy Berryhill was not validly serving when she ratified ALJ appointments.
- FVRA permits temporary service in principal officer roles and limits service under 5 U.S.C. § 3346(a): a 210-day period after a vacancy and a separate period while a nomination is pending.
- President Obama issued a 2016 SSA succession memorandum designating the Deputy Commissioner for Operations (Berryhill) to serve if Commissioner and Deputy Commissioner positions were vacant.
- Berryhill served as Acting Commissioner, ceased after a GAO determination that FVRA limits had been exceeded, then resumed after President Trump submitted a Commissioner nomination to the Senate; she ratified ALJ appointments in July 2018.
- The district court held Berryhill was not properly serving when she ratified the ALJ appointments; the government appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 3346(a)(2) is only a tolling provision (so noncontinuous service is prohibited) | §3346(a)(2) merely tolls §3346(a)(1); a person who stopped serving after 210 days cannot resume once a nomination is submitted | §3346(a)(2) provides an independent period allowing service while a nomination is pending; subsections are disjunctive and distinct | Court held §3346(a)(2) can independently authorize service while a nomination is pending; noncontinuous service permitted |
| Whether a prior President's FVRA succession memo must be reissued (i.e., President must "direct" anew) | The word "direct" requires the new President to take affirmative action; Obama’s memo did not bind the new administration | Presidential directives without time limits remain in force across transitions; the 2016 memo validly designated Berryhill under §3345(a)(3) | Court held the 2016 succession memo remained effective and Berryhill was properly directed to serve when she ratified ALJ appointments |
Key Cases Cited
- Lucia v. S.E.C., 138 S. Ct. 2044 (2018) (ALJs are "Officers of the United States" requiring proper appointment)
- Foulk v. Charrier, 262 F.3d 687 (8th Cir. 2001) (standard: de novo review for constitutional and statutory construction questions)
- United States v. Woods, 571 U.S. 31 (2013) (use of "or" is disjunctive; connected phrases get separate meanings)
- N.L.R.B. v. SW Gen., Inc., 580 U.S. 288 (2017) (discussed FVRA tolling in context of eligibility to serve)
- McGirt v. Oklahoma, 140 S. Ct. 2452 (2020) (textual clarity can obviate need for extratextual sources)
- Norwest Bank of North Dakota, N.A. v. Doth, 159 F.3d 328 (8th Cir. 1998) (statutes should receive sensible constructions to effectuate purpose)
- In re Pre-Filled Propane Tank Antitrust Litig., 860 F.3d 1059 (8th Cir. 2017) (weight of dicta vs. binding precedent)
- Bostock v. Clayton Cnty., Georgia, 140 S. Ct. 1731 (2020) (noting continuity of prior presidential directives in related discussion)