Carr v. Saul

P R E L I M I N A R Y P R I N T
Volume 593 U. S. Part 1
Pages 83–97
OFFICIAL REPORTS
OF
T H E S U P R E M E C O U R T
April 22, 2021
REBECCA A. WOMELDORF
reporter of decisions
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OCTOBER
TERM, 2020
83
Syllabus
CARR et al. v. SAUL, COMMISSIONER OF SOCIAL
SECURITY
certiorari
to the united states court of appeals for
the tenth circuit
No. 19–1442. Argued March 3, 2021—Decided April 22, 2021*
Petitioners are six individuals whose applications for disability benefts
were denied by the Social Security Administration (SSA). They each
unsuccessfully challenged their respective adverse beneft determina-
tion in a hearing before an SSA administrative law judge (ALJ). The
SSA Appeals Council denied discretionary review in each case. There-
after, this Court decided Lucia v. SEC, 585 U. S. –––, which held that
the appointment of Securities and Exchange Commission ALJs by lower
level staff violated the Constitution's Appointments Clause. Because
the SSA ALJs who denied petitioners' claims were also appointed by
lower level staff, petitioners argued in federal court that they were en-
titled to a fresh administrative review by constitutionally appointed
ALJs. In each case, the Court of Appeals held that petitioners could
not obtain judicial review of their Appointments Clause claims because
they failed to raise those challenges in their administrative proceedings.
Held: The Courts of Appeals erred in imposing an issue-exhaustion re-
quirement on petitioners' Appointments Clause claims. Pp. 88–96.
(a) Administrative review schemes commonly require parties to give
the agency an opportunity to address an issue before seeking judicial
review of that question. Such administrative issue-exhaustion require-
ments are typically creatures of statute or regulation. But where, as
here, no statute or regulation imposes an issue-exhaustion requirement,
courts decide whether to require issue exhaustion based on “an analogy
to the rule that appellate courts will not consider arguments not raised
before trial courts.” Sims v. Apfel, 530 U. S. 103, 108–109. “[T]he de-
sirability of a court imposing a requirement of issue exhaustion depends
on the degree to which the analogy to normal adversarial litigation ap-
plies in a particular administrative proceeding.” Id., at 109. In Sims,
which declined to apply an issue-exhaustion requirement to SSA Ap-
peals Council proceedings, the Court explained that “the rationale for
requiring issue exhaustion is at its greatest” when “the parties are ex-
pected to develop the issues in an adversarial administrative proceed-
*Together with No. 20–105, Davis et al. v. Saul, Commissioner of So-
cial Security, on certiorari to the United States Court of Appeals for the
Eighth Circuit.

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84 CARR
v. SAUL
Syllabus
ing,” but is “much weaker” when “an administrative proceeding is not
adversar
ial.” Id., at 110. Although Sims dealt with administrative re-
view before the SSA Appeals Council, much of the opinion's rationale
applies equally to SSA ALJ proceedings. Pp. 88–91.
(b) Even assuming that ALJ proceedings are comparatively more
adversarial than Appeals Council proceedings, the question remains
whether the ALJ proceedings here were adversarial enough to support
the “analogy to judicial proceedings” that undergirds judicially created
issue-exhaustion requirements. Sims, 530 U. S., at 112 (plurality opin-
ion). Pp. 91–96.
(1) In the specifc context of petitioners' Appointments Clause chal-
lenges, two considerations tip the scales decidedly against imposing an
issue-exhaustion requirement. First, agency adjudications are gener-
ally ill suited to address structural constitutional challenges, which usu-
ally fall outside the adjudicators' areas of technical expertise. See, e. g.,
Free Enterprise Fund v. Public Company Accounting Oversight Bd.,
561 U. S. 477, 491. Second, this Court has consistently recognized a
futility exception to exhaustion requirements. See, e. g., Bethesda Hos-
pital Assn. v. Bowen, 485 U. S. 399, 405–406. Both considerations apply
fully here: Petitioners assert purely constitutional claims about which
SSA ALJs have no special expertise and for which they can provide no
relief. United States v. L. A. Tucker Truck Lines, Inc., 344 U. S. 33,
distinguished. Pp. 92–95.
(2) The Commissioner's contention that petitioners cannot obtain
new hearings because they did not “timely challenge” their adjudicators'
appointments presumes what the Commissioner has failed to prove: that
petitioners' challenges are, in fact, untimely. The Commissioner's reli-
ance on Ryder v. United States, 515 U. S. 177, and Lucia, 585 U. S. –––,
is misplaced, as neither decision had occasion to opine on what would
constitute a “timely” objection in an administrative review scheme like
the SSA's. Pp. 95–96.
961 F. 3d 1267 and 963 F. 3d 790, reversed and remanded.
Sotomayor, J., delivered the opinion of the Court, in which Roberts,
C. J., and Alito, Kagan, and Kavanaugh, JJ., joined, in which Thomas,
Gorsuch, and Barrett, JJ., joined as to Parts I, II–A, and II–B–2, and
in which Breyer, J., joined as to Parts I, II–B–1, and II–B–2. Thomas,
J., fled an opinion concurring in part and concurring in the judgment, in
which Gorsuch and Barrett, JJ., joined, post, p. 96. Breyer, J., fled
an opinion concurring in part and concurring in the judgment, post, p. 97.
Sarah M. Harris argued the cause for petitioners in
No. 19–1442. With her on the briefs were Lisa S. Blatt and
Charles L. McCloud. Kannon K. Shanmugam fled a brief

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85
Opinion of the Court
for petitioners in No. 20–105. With him on the briefs were
Wi
lliam T. Marks, Joel S. Johnson, and Mahesha P.
Subbaraman.
Austin L. Raynor argued the cause for respondent in both
cases. With him on the brief were Acting Solicitor General
Prelogar, Acting Assistant Attorney General Boynton, Dep-
uty Solicitor General Kneedler, Vivek Suri, Mark B. Stern,
Joshua M. Salzman, and Daniel Aguilar.†
Justice Sotomayor delivered the opinion of the Court.
When the Social Security Administration (SSA) denies a
claim for disability benefts, a claimant who wishes to contest
that decision in federal court must frst seek a hearing before
an administrative law judge (ALJ). The petitioners here
did just that: They each unsuccessfully challenged an adverse
benefts determination in ALJ proceedings, and they now
ask for judicial review. Specifcally, petitioners argue that
they are entitled to new hearings before different ALJs
because the ALJs who originally heard their cases were
not properly appointed under the Appointments Clause of
the U. S. Constitution. The question for the Court is
whether petitioners forfeited their Appointments Clause
challenges by failing to make them frst to their respective
ALJs. The Court holds that petitioners did not forfeit
their claims.
†Briefs of amici curiae urging reversal in both cases were fled for the
Institute for Justice by Robert E. Johnson and Anthony Sanders; for the
National Association of Disability Representatives by Chanakya A. Sethi
and Rakesh N. Kilaru; for the National Organization of Social Security
Claimants Representatives et al. by Carolyn A. Kubitschek, Barbara R.
Silverstone, Barbara Jones, Thomas D. Sutton, and Robert E. Rains;
for the New Civil Liberties Alliance et al. by Jared McClain, Richard
Samp, and Ilya Shapiro; for the Pacifc Legal Foundation by Brian T.
Hodges and Oliver J. Dun ford; and for Social Security Scholars et al. by
Jon C. Dubin.
Alan B. Morrison and Richard J. Pierce, Jr., fled a brief in both cases
for the Collective of Social Security Administration Administrative Law
Judges.

86 CARR
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Opinion of the Court
I
The
six petitioners in these consolidated cases each applied
for disability benefts between 2013 and 2015.
1
After their
applications were denied, petitioners followed the prescribed
steps for seeking administrative review. They sought re-
consideration of the agency's initial determination, received
a hearing before an ALJ, and requested review by the SSA's
Appeals Council. See 20 CFR § 404.900(a). Petitioners
were unsuccessful at every stage, concluding with the Ap-
peals Council, which denied discretionary review.
This Court then held in Lucia v. SEC, 585 U. S. ––– (2018),
that ALJs within the Securities and Exchange Commission
(SEC) had been unconstitutionally appointed. Under the
Appointments Clause, only the President, “Courts of Law,”
or “Heads of Departments” may appoint “Offcers of the
United States.” Art. II, § 2, cl. 2; see Lucia, 585 U. S.,
at –––. The Lucia Court determined that SEC ALJs were
“Offcers” rather than mere employees because they held “a
continuing offce established by law,” exercised “ `signifcant
discretion' when carrying out . . . `important functions,' ”
and often had the last word in SEC proceedings. Id.,
at ––– – –––. Consequently, the appointment of SEC ALJs
by SEC staff violated the Constitution. Id., at –––, –––.
Like the SEC ALJs at issue in Lucia, SSA ALJs had been
selected by lower level staff rather than appointed by the
head of the agency. On July 16, 2018, a few weeks after
Lucia was decided, the SSA's Acting Commissioner pre-
emptively “address[ed] any Appointments Clause questions
involving Social Security claims” by “ratif[ying] the appoint-
ments” of all SSA ALJs and “approv[ing] those appointments
1
The Social Security Act provides disability benefts under two pro-
grams, Title II and Title XVI. Some petitioners sought benefts under
Title II only, some under Title XVI only, and some under both. The dis-
tinctions between the two programs are irrelevant for present purposes.
For ease of reference, this opinion cites only to the regulations governing
Title II, found at 20 CFR pt. 404 (2020).
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Opinion of the Court
as her own.” 84 Fed. Reg. 9583 (2019). The following year,
the
SSA issued a ruling stating that the Appeals Council
should, in response to timely requests for Appeals Council
review, vacate preratifcation ALJ decisions and provide
fresh review by a properly appointed adjudicator. Ibid.
That remedy was only available, however, to claimants who
had raised an Appointments Clause challenge in either their
ALJ or Appeals Council proceedings. Ibid. Claimants who
had not objected to the ALJs' appointments in their adminis-
trative proceedings would receive no relief. See ibid.
Petitioners fell into this latter category. By the time the
SSA issued its ruling, their administrative proceedings had
concluded, and they were seeking review of the SSA's deci-
sions in federal court. Following Lucia, each petitioner
asked the Federal District Court (or, in some cases, the Fed-
eral Magistrate Judge) for a new hearing before a constitu-
tionally appointed ALJ. The Commissioner did not dispute
that the ALJs who decided petitioners' cases were unconsti-
tutionally appointed, but contended instead that petitioners
had forfeited their Appointments Clause challenges by fail-
ing to raise them before the agency.
In three separate decisions (covering all six petitioners),
the U. S. Courts of Appeals for the Eighth and Tenth Cir-
cuits adopted the Commissioner's forfeiture argument. In
those Circuits' view, petitioners could not obtain judicial re-
view of their Appointments Clause claims because they had
not pressed those challenges in their administrative proceed-
ings. 963 F. 3d 790, 793 (CA8 2020); 964 F. 3d 759, 763 (CA8
2020); Carr v. Commissioner, SSA, 961 F. 3d 1267, 1268
(CA10 2020). The Third, Fourth, and Sixth Circuits have all
held the opposite. In those Circuits, claimants may chal-
lenge the constitutionality of an SSA ALJ's appointment for
the frst time in federal court. See Cirko v. Commissioner
of Social Security, 948 F. 3d 148, 152 (CA3 2020); Probst v.
Saul, 980 F. 3d 1015, 1020 (CA4 2020); Ramsey v. Commis-
sioner of Social Security, 973 F. 3d 537, 546 (CA6 2020).
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Opinion of the Court
The Court granted certiorari to resolve this confict. 592
U
. S. ––– (2020).
II
Administrative review schemes commonly require parties
to give the agency an opportunity to address an issue before
seeking judicial review of that question. The source of this
requirement (known as issue exhaustion) varies by agency.
2
Typically, issue-exhaustion rules are creatures of statute or
regulation. Sims v. Apfel, 530 U. S. 103, 107–108 (2000); see
United States v. L. A. Tucker Truck Lines, Inc., 344 U. S.
33, 36, n. 6 (1952) (collecting statutes). Where statutes and
regulations are silent, however, courts decide whether to re-
quire issue exhaustion based on “an analogy to the rule that
appellate courts will not consider arguments not raised be-
fore trial courts.” Sims, 530 U. S., at 108–109. The Com-
missioner concedes that no statute or regulation obligated
petitioners to raise their Appointments Clause challenges in
administrative proceedings. See Brief for Respondent 12,
35, n. 2; Tr. of Oral Arg. 39. Instead, the Commissioner asks
this Court to impose a judicially created issue-exhaustion re-
quirement in these cases.
A
“[T]he desirability of a court imposing a requirement of
issue exhaustion depends on the degree to which the analogy
to normal adversarial litigation applies in a particular admin-
istrative proceeding.” Sims, 530 U. S., at 109. In conduct-
ing this inquiry, courts must take care not to “refexively
`assimilat[e] the relation of . . . administrative bodies and the
courts to the relationship between lower and upper courts.' ”
Id., at 110 (quoting FCC v. Pottsville Broadcasting Co., 309
2
Issue exhaustion should not be confused with exhaustion of administra-
tive remedies. There is no dispute in these cases that petitioners ex-
hausted their administrative remedies, meaning that they proceeded
through each step of the SSA's administrative review scheme and received
a “fnal decision” before seeking judicial review. See 42 U. S. C. § 405(g).
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U. S. 134, 144 (1940)). Instead, “ [t]he inquiry requires
carefu
l examination of `the characteristics of the particular
administrative procedure provided. ' ” 530 U. S., at 113
(O'Connor, J., concurring in part and concurring in judg-
ment) (quoting McCarthy v. Madigan, 503 U. S. 140, 146
(1992)). The critical feature that distinguishes adversarial
proceedings from inquisitorial ones is whether claimants
bear the responsibility to develop issues for adjudicators'
consideration.
3
With respect to the nature of the SSA proceedings at issue
here, our inquiry starts from the baseline set by Sims v.
Apfel. There, this Court held that issues not raised before
the Appeals Council (the fnal stage of administrative review
within the SSA) are nonetheless preserved for judicial re-
view. In so holding, the Court explained that “the rationale
for requiring issue exhaustion is at its greatest” when “the
parties are expected to develop the issues in an adversarial
administrative proceeding,” but “the reasons for a court to
require issue exhaustion are much weaker” when “an admin-
istrative proceeding is not adversarial.” 530 U. S., at 110.
The plurality went on to explain that “[t]he differences be-
tween courts and agencies are nowhere more pronounced
3
The Commissioner invokes the “general rule,” recognized in cases such
as L. A. Tucker Truck Lines, that “orderly procedure and good adminis-
tration require that objections to the proceedings of an administrative
agency be made while it has opportunity for correction in order to raise
issues reviewable by the courts.” United States v. L. A. Tucker Truck
Lines, Inc., 344 U. S. 33, 37 (1952); see also Hormel v. Helvering, 312 U. S.
552, 557 (1941); Unemployment Compensation Comm'n of Alaska v. Ara-
gon, 329 U. S. 143, 154–155 (1946). That general rule, however, originated
in cases that “each involved an adversarial proceeding.” Sims v. Apfel,
530 U. S. 103, 110 (2000). Where claimants are not expected to develop
certain issues in ALJ proceedings, it is generally inappropriate to treat
those issues as forfeited. See id., at 109 (“[C]ourts require administrative
issue exhaustion `as a general rule' because it is usually `appropriate under
[an agency's] practice' for `contestants in an adversary proceeding ' before
it to develop fully all issues there” (quoting L. A. Tucker Truck Lines, 344
U. S., at 36–37)).
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than in Social Security proceedings,” where administrative
“proceedi
ngs are inquisitorial rather than adversarial.” Id.,
at 110–111. Regulations governing SSA proceedings “ex-
pressly provide that the SSA `conduct[s] the administrative
review process in an informal, nonadversary manner' ” and
assures claimants that the SSA “ `will consider at each step
of the review process any information you present as well as
all the information in our records.' ” Id., at 111 (quoting 20
CFR § 404.900(b) (1999)). At the Appeals Council level, “the
Council's review is plenary unless it states otherwise.”
Sims, 530 U. S., at 111 (plurality opinion). Rather than ap-
pear “as a litigant opposing the claimant,” the Commissioner
serves “just as an adviser to the Council.” Ibid. Claimants
are not required to fle a brief; indeed, the SSA's standard
form “provides only three lines for [a claimant's] request for
review.” Id., at 112. A notice “accompanying the form es-
timates that it will take only 10 minutes to `read the instruc-
tions, gather the necessary facts and fll out the form.' ”
Ibid. Thus, in the context of Appeals Council review, the
plurality observed that the “adversarial development of is-
sues by the parties . . . on which [the judicial-proceedings]
analogy depends simply does not exist.” Ibid.
Justice O'Connor concurred in the judgment. In her view,
“the agency's failure to notify claimants of an issue exhaus-
tion requirement” provided a “suffcient basis” for refusing
to impose one by judicial decree. Id., at 113. “Requiring
issue exhaustion is par ticu larly inappropr iate, ” she ex-
plained, “where the regulations and procedures of the [SSA]
affrmatively suggest that specifc issues need not be raised
before the Appeals Council.” Ibid.
Much of what the Sims opinions said about Appeals Coun-
cil review applies equally to ALJ proceedings. The Sims
plurality itself noted that “[i]t is the ALJ's duty to investi-
gate the facts and develop the arguments both for and
against granting benefts” and that “[t]he Commissioner has
no representative before the ALJ to oppose the claim for

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Opinion of the Court
benefts.” Id., at 111. The SSA regulations that ensure
i
nformal, nonadversarial proceedings and plenary review
apply as much to ALJs as to the Appeals Council. See 20
CFR § 404.900(b). Regulations also provide that ALJs will
“loo[k] fully into the issues” themselves, § 404.944, and may
“raise a new issue” at “any time . . . before mailing notice of
the hearing decision,” § 404.946(b)(1). Like the form sup-
plied by the SSA to request Appeals Council review, the
form to request an ALJ hearing provides roughly three lines
for claimants to explain their disagreement with the agency's
determination, and the SSA “estimate[s]” that it will take
just “10 minutes to read the instructions, gather the facts,
and answer the questions” on that form. SSA, Request for
Hearing by Administrative Law Judge, Form HA–501–U5.
Last, as with the Appeals Council, SSA “regulations provide
no notice that claimants must . . . raise specifc issues before”
the ALJ “to preserve them for review in federal court.”
Sims, 530 U. S., at 113 (opinion of O'Connor, J.).
B
The parallels between ALJ and Appeals Council proceed-
ings are many, but the Commissioner correctly notes several
differences that may make ALJ hearings relatively more ad-
versarial. For one, ALJ hearings are typically available as
a matter of right, while Appeals Council review is discretion-
ary. Compare 20 CFR § 404.957 w ith § 404.967. Most
claimants thus submit no more than a one-page request for
review to the Appeals Council before having their request
denied. Mandatory ALJ proceedings, by contrast, present
far more opportunities for claimants to press issues, and the
SSA consequently relies more heavily on those proceedings
to “conduc[t the agency's] principal and most thorough inves-
tigation of . . . disability claim[s].” Brief for Respondent 35–
36. Additionally, before every hearing, the SSA mails claim-
ants a “notice of hearing ” that includes logistical information
and lists the “[t]he specifc issues to be decided in [the] case.”
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§ 404.938(b)(1). Claimants must notify the ALJ in writing if
they
“object to the issues to be decided at the hearing.”
4
§ 404.939. Similarly, SSA confict-of-interest regulations in-
struct claimants to “notify the [ALJ] at [the] earliest oppor-
tunity” if they “object to the [ALJ] who will conduct [their]
hearing.” § 404.940.
Even accepting that ALJ proceedings may be compara-
tively more adversarial than Appeals Council proceedings,
the question nonetheless remains whether the ALJ proceed-
ings at issue here were adversarial enough to support the
“analogy to judicial proceedings” that undergirds judicially
created issue-exhaustion requirements. Sims, 530 U. S.,
at 112 (plurality opinion). In the specifc context of pe-
titioners' Appointments Clause challenges, two additional
considerations tip the scales decidedly against imposing an
issue-exhaustion requirement.
5
1
First, this Court has often observed that agency adjudica-
tions are generally ill suited to address structural constitu-
tional challenges, which usually fall outside the adjudicators'
areas of technical expertise. See, e. g., Free Enterprise
Fund v. Public Company Accounting Oversight Bd., 561
U. S. 477, 491 (2010); Califano v. Sanders, 430 U. S. 99, 109
(1977); Weinberger v. Salfi, 422 U. S. 749, 765 (1975). As
such, it is sometimes appropriate for courts to entertain con-
stitutional challenges to statutes or other agency-wide poli-
cies even when those challenges were not raised in adminis-
trative proceedings.
6
See, e. g., Mathews v. Diaz, 426 U. S.
4
As discussed above, see supra, at 88, the Commissioner “do[es] not
argue that these regulations themselves impose a forfeiture rule that ap-
plies here.” Brief for Respondent 35, n. 2.
5
Outside the context of Appointments Clause challenges, such as in the
sphere of routine objections to individual benefts determinations, the
scales might tip differently.
6
Contrary to the Commissioner's assertion, Richardson v. Perales, 402
U. S. 389 (1971), has no bearing on whether an issue-exhaustion require-
ment is appropriate in these cases. In Perales, the Court rejected a
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67, 76–77 (1976). Thus, this Court observed in Mathews v.
El
dridge, 424 U. S. 319 (1976), that, so long as a Social Secu-
rity claimant “had exhausted the full set of available admin-
istrative review procedures” (as petitioners did here), “fail-
ure to have raised his constitutional claim would not bar him
from asserting it later in a district court.” Id., at 329, n. 10.
Second, this Court has consistently recognized a futility
exception to exhaustion requirements. See, e. g., Bethesda
Hospital Assn. v. Bowen, 485 U. S. 399, 405–406 (1988); Mon-
tana Nat. Bank of Billings v. Yellowstone County, 276 U. S.
499, 505 (1928). It makes little sense to require litigants to
present claims to adjudicators who are powerless to grant
the relief requested. Such a vain exercise will rarely “pro-
tec[t] administrative agency authority” or “promot[e] judicial
effciency.” McCarthy, 503 U. S., at 145.
Both considerations apply fully here: Petitioners assert
purely constitutional claims about which SSA ALJs have no
special expertise and for which they can provide no relief.
Relying on L. A. Tucker Truck Lines, the Commissioner ar-
gues that it nevertheless would have been fruitful for peti-
tioners to raise Appointments Clause challenges in their ALJ
hearings because “ `[r]epetition of the objection' in multiple
cases could have led `to a change of policy.' ” Brief for Re-
spondent 45 (quoting L. A. Tucker Truck Lines, 344 U. S., at
37). But the Commissioner misses a key distinction: In
L. A. Tucker Truck Lines, the aggrieved litigant had the
opportunity to object to the relevant method of appointment
before the full Interstate Commerce Commission itself. Id.,
at 34. Repetition of such an objection in cases before the
claimant's procedural due process challenge to the admissibility of an ad-
verse medical report, explaining (among other reasons) that “[a]lthough
the claimant complain[ed] of the lack of opportunity to cross-examine the
reporting physicians, he did not take advantage of the opportunity” to
subpoena the physicians. Id., at 404. Perales thus stands for the uncon-
troversial (and irrelevant) proposition that a claimant is not denied due
process if he declines to take advantage of the adequate procedures avail-
able to him.
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full Commission might have persuaded it to change its “pre-
deter
mined policy on th[e] subject.” Id., at 37. Here, by
contrast, the SSA's administrative review scheme at no point
afforded petitioners access to the Commissioner, the one
person who could remedy their Appointments Clause chal-
lenges. Nor were the ALJs capable of remedying any de-
fects in their own appointments. After all, there were no
Commissioner-appointed ALJs to whom objecting claimants'
cases could be transferred, and the ALJs could not very well
have reappointed themselves.
Internal SSA guidance confrms as much. On January 30,
2018, soon after this Court granted certiorari in Lucia, the
agency issued an “emergency message” to ALJs advising
them that “adjudicators may see challenges . . . related to
the constitutionality of the appointment of SSA's ALJs.”
SSA, EM–18003: Important Information Regarding Possi-
ble Challenges to the Appointment of Administrative Law
Judges in SSA's Administrative Process, p. 2. The agency
warned ALJs that, because the “SSA lacks the authority to
fnally decide constitutional issues such as these,” they
should “not discuss or make any fndings related to the Ap-
pointments Clause issue on the record.” Ibid. Instead,
ALJs were directed to acknowledge any Appointments
Clause objections with standardized language explaining
that they “ `d[id] not have the authority to rule on that
challenge.' ” Ibid. The SSA reiterated these instructions
i n a second emergency message issued shor tly af ter
Lucia was decided.
7
See SSA, EM–18003 REV: Important
7
Although the agency issued its internal guidance several months after
petitioners' ALJ hearings concluded, there is no indication that the ALJs
would or could have adjudicated an Appointments Clause challenge at any
time. Moreover, as a practical matter, the agency's emergency messages
belie the Commissioner's suggestion that the SSA would have changed
course if only it had been “ `put on notice of the accumulating risk of whole-
sale reversals.' ” Brief for Respondent 45 (quoting L. A. Tucker Truck
Lines, 344 U. S., at 37).
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Information Regarding Possible Challenges to the Appoint-
ment
of Administrative Law Judges in SSA's Administra-
tive Process—UPDATE, pp. 1–2 (June 25, 2018). It was not
until March 2019 that the Acting Commissioner fnally in-
structed the Appeals Council on how to handle preratifca-
tion Appointments Clause challenges. See 84 Fed. Reg.
9582; supra, at 87.
2
Taking a somewhat different tack, the Commissioner con-
tends that petitioners are not entitled to new hearings before
constitutionally appointed ALJs because they failed to make
“timely challenge[s]” to their adjudicators' appointments.
Ryder v. United States, 515 U. S. 177, 182 (1995); Lucia, 585
U. S., at ––– (quoting Ryder). That argument, however, pre-
sumes what the Commissioner has failed to prove: that peti-
tioners' challenges are, in fact, untimely. The Commissioner
relies on Ryder and Lucia, but neither of those decisions
had occasion to opine on what would constitute a “timely”
objection in an administrative review scheme like the SSA's.
Ryder involved an appeal from a Coast Guard court-martial,
515 U. S., at 179, an adversarial proceeding in which tradi-
tional forfeiture rules apply, see United States v. Gladue, 67
M. J. 311, 313 (C. A. Armed Forces 2009). Lucia, meanwhile,
arose from proceedings before the Securities and Exchange
Commission, 585 U. S., at ––– – –––, in which a statutory
issue-exhausti on requirement appl ies, see 15 U. S. C.
§ 78y(c)(1). Where, as here, claimants are not required to
exhaust certain issues in administrative proceedings to pre-
serve them for judicial review, claimants who raise those is-
sues for the frst time in federal court are not untimely in
doing so.
***
Taken together, the inquisitorial features of SSA ALJ pro-
ceedings, the constitutional character of petitioners' claims,
and the unavailability of any remedy make clear that “adver-
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96 CARR
v. SAUL
Opinion of Thomas, J.
sarial development” of the Appointments Clause issue “sim-
ply
[did] not exist” (and could not exist) in petitioners' ALJ
proceedings. Sims, 530 U. S., at 112 (plurality opinion).
The Courts of Appeals therefore erred in imposing an issue-
exhaustion requirement on petitioners' Appointments Clause
claims. The judgments of the Eighth and Tenth Circuits are
reversed, and the cases are remanded for further proceed-
ings consistent with this opinion.
It is so ordered.
Justice Thomas, with whom Justice Gorsuch and Jus-
tice Barrett join, concurring in part and concurring in
the judgment.
I join Parts I, II–A, and II–B–2 of the opinion of the Court,
which correctly explain that the nonadversarial nature of an
agency proceeding generally gives good reason to refrain
from creating an issue-exhaustion requirement. See Sims
v. Apfel, 530 U. S. 103, 109–110 (2000). Proceedings before
an administrative law judge (ALJ) of the Social Security Ad-
ministration are plainly nonadversarial: The regulations as-
sure claimants that the agency will “conduct the administra-
tive review process in an informal, non-adversarial manner.”
20 CFR § 404.900(b) (2020). ALJs can raise new issues
sua sponte. §§ 404.944, 404.946. Hearings are so informal
that lawyers, briefs, and even attendance are often optional.
§§ 404.948–404.950. And should an ALJ err, the Appeals
Council may review cases to correct anything from “error[s]
of law” to “broad policy or procedural issue[s] that may affect
the general public interest.” § 404.970(a). This decidedly
pro-claimant, inquisitorial process is quite unlike an adver-
sarial suit in which parties are expected to identify, argue,
and preserve all issues.
To be sure, a few regulatory provisions direct claimants to
advocate on their own behalf by objecting to problems, in-
cluding if the agency misidentifes issues before the hearing
or if the ALJ is “prejudiced or partial.” §§ 404.938–404.940.
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as: 593 U. S. 83 (2021)
97
Opinion of Breyer, J.
But these unsurprising reminders that a claimant should not
sit
idly on the sidelines hardly demand that the penalty for
overlooking an argument is forfeiture. On the contrary,
such a permanent consequence would be surprising in light
of the fexible, “informal” mechanisms that undergird the en-
tire agency review process. § 404.900(b); see also Sims, 530
U. S., at 110 (plurality opinion) (“The differences between
courts and agencies are nowhere more pronounced than in
Social Security proceedings”).
Because these proceedings bear little resemblance to ad-
versarial litigation, I agree with the Court that there is
no need for an exhaustion rule. I would end the analysis
there.
Justice Breyer, concurring in part and concurring in
the judgment.
I continue to believe that, “[u]nder ordinary principles of
administrative law a reviewing court will not consider argu-
ments that a party failed to raise in timely fashion before an
administrative agency.” Sims v. Apfel, 530 U. S. 103, 114
(2000) (Breyer, J., dissenting). I also adhere to my prior
view that, in the particular context of the Social Security
Administration, a claimant “ordinarily must raise all relevant
issues before the ALJ” and that the “nonadversarial nature”
of the agency's procedures is generally irrelevant to whether
the ordinary rule requiring issue exhaustion ought to apply.
Id., at 117. Here, however, I agree with the Court that the
Appointments Clause challenges at issue fall into the well-
established exceptions for constitutional and futile claims.
See ante, at 92–95; see also Sims, 530 U. S., at 115 (Breyer,
J., dissenting); Woodford v. Ngo, 548 U. S. 81, 103 (2006)
(Breyer, J., concurring in judgment); Ross v. Blake, 578
U. S. 632, 649 (2016) (Breyer, J., concurring in part) (recog-
nizing these traditional exceptions). I therefore join Parts
I, II–B–1, and II–B–2 of the Court's opinion and concur in
the Court's judgment.
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