Keck v. Berryhill ( 2019 )

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA JERRY R. KECK, Plaintiff, 8:18CV476 vs. ORDER NANCY A. BERRYHILL, Acting Commissioner of Social Security; Defendant. This matter is before the Court on the Court’s own motion. On March 25, 2019, Plaintiff Jerry R. Keck filed a Motion for an Order Reversing the Commissioner’s Decision, ECF No. 13. On May 1, 2019, Defendant Nancy A. Berryhill filed a Motion to Affirm Commissioner’s Decision, ECF No. 17. One of Keck’s arguments is that the administrative law judge (“ALJ”) who decided his case was an inferior officer not appointed in accordance with the Appointments Clause and, thus, the ALJ’s decision should be vacated and the case remanded for a decision by a new constitutionally appointed ALJ. Pl. Br., ECF No. 14, Page ID 751. Defendant argues that because Keck did not raise the issue at any point during the administrative process, either before the ALJ or Appeals Council, he has waived his Appointments Clause challenge. Def. Br., ECF No. 18, Page ID 782. Keck argues that his Appointments Clause challenge may be presented for the first time on appeal. In Thurman v. Comm’r, No. 1:17-cv-35-LRR, 2018 WL 4300504, at *9 (N.D. Iowa Sept. 10, 2018), Thurman, like Keck, “did not present her Appointments Clause challenge to the ALJ or the Appeals Council.” Id. The United States District Court for the Northern District of Iowa concluded that “Thurman’s Appointments Clause argument [was] waived.” Id. Thurman appealed, and one of the issues this Court is asked to decide is now before the Eighth Circuit Court of Appeals in Thurman v. Comm’r, No. 18-3451 (8th Cir. appeal docketed November 19, 2018). Therefore, this Court finds that this matter should be held in abeyance pending a decision by the Eighth Circuit Court of Appeals in Thurman v. Comm’r, No. 18-3451. Accordingly, IT IS SO ORDERED: 1. The decision on Plaintiff’s Motion for an Order Reversing the Commissioner’s Decision, ECF No. 13, and Defendant’s Motion to Affirm Commissioner’s Decision ECF No. 17, will be held in abeyance pending the decision of the Eighth Circuit Court of Appeals in Thurman v. Comm’r, No. 18-3451; and 2. Plaintiff shall notify the Court of the decision of the Eighth Circuit Court of Appeals in Thurman v. Comm’r, No. 18-3451, within 14 days of the decision. Upon such notification, the Court will enter an order lifting the stay and render a decision on the motions pending before this Court, ECF Nos. 13, 17. Dated this 22nd day of October, 2019. BY THE COURT: s/Laurie Smith Camp Senior United States District Judge