Brian K. Brown v. KILOLO KIJAKAZI , Acting Commissioner of Social Security

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRIAN K. B ROWN,
Plaintiff-Appellant,
v.
KILOLO KIJAKAZI , Acting
Commissioner of Social Security,
Defendant-Appellee.
No. 20-35533
D.C. No.
3:19-cv-05613-
MAT
ORDER
Appeal from the United States District Court
for the Western District of Washington
Mary Alice Theiler, Magistrate Judge, Presiding
Submitted June 7, 2021*
Seattle, Washington
Filed August 30, 2021
Before: William A. Fletcher, Paul J. Watford, and
Daniel P. Collins, Circuit Judges.
Order
* The panel unanimously concludes this case is suitable for decision
without oral argument. See FED. R. A PP . P. 34(a)(2)(C).

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2 BROWN V . K IJAKAZI
SUMMARY**
Social Security
The panel remanded this case to the district court with
instructions to remand to the Social Security Administration
with instructions to set aside the administrative law judge
(“ALJ”)’s determination that the claimant was not disabled
before April 25, 2018, and to conduct a new disability
hearing before a different, and properly appointed ALJ.
Claimant was awarded disability insurance benefits and
supplemental security income benefits by an ALJ who
concluded that, as of April 25, 2018, claimant was disabled
under the Social Security Act. Claimant filed a civil action,
pursuant to § 205(g) of the Act, challenging the ALJ’s
rejection of claimant’s claim that he was disabled prior to
April 25, 2018. The district court upheld the ALJ’s decision.
Claimant contends that the ALJ who conducted his
hearings had not been appointed in conformity with the
Appointments Clause of the Constitution. The
Commissioner of Social Security did not object to a remand
for a new hearing before a different ALJ. The panel agreed
that, under the circumstances of this case, a remand to the
agency for a new hearing was warranted.
The panel rejected the Commissioner’s assertion that this
court should remand for a new decision on the entirety of
claimant’s claim, including the decision to award benefits as
** This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

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BROWN V . K IJAKAZI 3
of April 25, 2018. This proceeding did not arise from a
direct appeal from a decision of one or more invalidly
appointed officers, nor was it a direct petition for review that
might similarly have brought the entirety of the
administrative decision before the court. Rather, the
statutory procedural vehicle for seeking judicial review of a
social security decision is a civil complaint filed in the
district court, asserting the statutory cause of action against
the Commissioner that is provided in § 205(g) of the Act.
The statute does not provide the Commissioner a cause of
action to challenge the portions of his own decision that are
favorable to the claimant. Given that only the claimant can
file an action under § 205(g), the relief requested will
necessarily be limited to only those aspects of the case that
were unfavorable to the claimant. The complaint in this case
asked for review of the ALJ’s denial of benefits for the
period from September 28, 2013, through April 24, 2018,
and specifically added that the finding of disability since
April 25, 2018, should not be disturbed. The panel held that
it had no authority to set aside, or to disturb, the
Commissioner’s grant of benefits for the time period on or
after April 25, 2018, because that was never placed at issue
prior to the entry of judgment below.
COUNSEL
Eitan Kassel Yanich, Law Office of Eitan Kassel Yanich
PLLC, Olympia, Washington, for Plaintiff-Appellant.
Brian T. Moran, United States Attorney; Kerry Jane Keefe,
Assistant United States Attorney; Mathew W. Pile, Regional
Chief Counsel, Seattle Region X; Sarah L. Martin, Assistant
Regional Counsel; Office of the General Counsel, Social

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4 BROWN V . K IJAKAZI
Security Administration, Seattle, Washington; for
Defendant-Appellee.
ORDER
After two administrative hearings, Appellant Brian
Brown was awarded disability insurance benefits and
supplemental security income (“SSI”) benefits by an
Administrative Law Judge (“ALJ”), who concluded that, as
of April 25, 2018, Brown was “disabled” within the meaning
of §§ 216(i), 223(d), and 1614(a)(3)(A) of the Social
Security Act (“the Act”). See 42 U.S.C. §§ 416(i), 423(d),
1382c(a)(3)(A). But the ALJ rejected Brown’s claim that he
was disabled prior to April 25, 2018. Brown filed a civil
action in the district court challenging the latter
determination, pursuant to § 205(g) of the Act. See
42 U.S.C. § 405(g); see also id. § 1383(c)(3) (denial of SSI
benefits is subject to judicial review under § 205(g)). The
district court upheld the ALJ’s decision, and Brown timely
appealed to this court.
In addition to arguing that the ALJ erred in finding that
Brown was not disabled before April 25, 2018, Brown has
also argued that the ALJ who conducted his hearings had not
been appointed in conformity with the Appointments Clause
of the Constitution. See U.S. Const. art. II, § 2, cl. 2; see also
Carr v. Saul, 141 S. Ct. 1352 (2021). Brown therefore
argued that, as an alternative to granting him relief on the
merits, the court should consider remanding the case to the
agency “for a new hearing before a different ALJ” who has
been appointed in conformity with the Appointments
Clause. In response to this argument, the Commissioner has
stated that, “[a]s a matter of agency discretion and in the
interests of justice, the Commissioner does not object to a

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BROWN V . K IJAKAZI 5
remand of this case for a new hearing before a different
ALJ.” We agree that, under the circumstances of this case,
a remand to the agency for a new hearing is warranted.
The Commissioner asserts, however, that in remanding
the case, this court “should remand for a new decision on the
entirety of Brown’s claim,” including the portion of the
ALJ’s decision that awarded Brown benefits as of April 25,
2018. We reject this suggestion in view of the procedural
posture in which this dispute over benefits under the Act is
presented to us.
This proceeding does not arise from a direct appeal from
a decision of one or more invalidly appointed officers, see
Ryder v. United States, 515 U.S. 177, 188 (1995), nor is it a
direct petition for review that might similarly have brought
the entirety of the administrative decision before us, see
Lucia v. SEC, 138 S. Ct. 2044, 2055 (2018). Rather, the
statutory procedural vehicle for seeking judicial review of a
social security decision is a civil complaint filed in the
district court, asserting the statutory cause of action against
the Commissioner that is provided in § 205(g) of the Act.
By its terms, that statute only permits an “individual”—here,
the claimant—to challenge a decision of the Commissioner,
by filing a “civil action” in the district court. See 42 U.S.C.
§ 405(g). The Commissioner, of course, cannot sue himself,
and so the statute does not provide him a cause of action to
challenge the portions of his own decision that are favorable
to the claimant. Carolyn A. Kubitschek & Jon C. Dubin,
Social Security Disability Law and Procedure in Federal
Court § 7:6 (2021) (“It should be noted that § 405(g), by its
own terms, limits federal court jurisdiction to instances in
which the claimant is the plaintiff. The Social Security
Administration may not appeal [to a district court] from a
decision in favor of the claimant.”). Moreover, like any

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6 BROWN V . K IJAKAZI
complaint in a civil action, a complaint filed by a social
security claimant asserting a claim under § 205(g) must set
forth the relief requested. See Fed. R. Civ. P. 8(a)(3); see
also Fed. R. Civ. P. 1, 81; cf. W.D. Wash. Gen. Ord. 05-15
(June 1, 2015) (exempting Commissioner, in a proceeding
brought “pursuant to 42 U.S.C. § 405(g),” from the need to
file a separate “Answer” to a “complaint” beyond the filing
of the certified administrative record). Given that only the
claimant (or, perhaps, the claimant’s representative) can file
an action under § 205(g), the relief requested in any such
complaint will necessarily be limited to only those aspects
of the case that are unfavorable to the claimant. Thus,
unsurprisingly, the complaint in this case asked the district
court to “review[], reverse[], and set aside” the ALJ’s denial
of “disability benefits for the time period of September 28,
2013 through April 24, 2018,” and the complaint specifically
added that “the finding of disability since April 25, 2018
should not be disturbed.”
As the appeal in this civil action comes to us, therefore,
the only question is whether Brown should be granted the
relief he requests, which is to set aside the determination that
he was not disabled before April 25, 2018. We have no
authority to set aside, or to disturb, the Commissioner’s grant
of benefits for the time period on or after April 25, 2018,
because that was never placed at issue prior to the entry of
judgment below. Cf. Albemarle Paper Co. v. Moody,
422 U.S. 405, 424 (1975) (relief outside the pleadings should
not be granted where opposing party lacked notice and
would be prejudiced). We therefore cannot enter an order,
as the Government requests, directing that the entirety of the
decision be redetermined. To do so would, in effect, assert
and grant a form of counterclaim or cross-claim on the
Government’s behalf, and the Government has not identified
any authority that would allow us to do that.

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BROWN V . K IJAKAZI 7
Accordingly, we remand this case to the district court
with instructions to remand to the agency with instructions
to set aside the ALJ’s determination that Brown was not
disabled before April 25, 2018, and to conduct a new hearing
on that issue before a different, and properly appointed, ALJ.
REMANDED.

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