(Slip Opinion) OCTOBER TERM, 2020 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
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 benefits
were denied by the Social Security Administration (SSA). They each
unsuccessfully challenged their respective adverse benefit 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. Be-
cause the SSA ALJs who denied petitioners’ claims were also ap-
pointed by lower level staff, petitioners argued in federal court that
they were entitled to a fresh administrative review by constitutionally
appointed ALJs. In each case, the Court of Appeals held that petition-
ers could not obtain judicial review of their Appointments Clause
claims because they failed to raise those challenges in their adminis-
trative proceedings.
Held: The Courts of Appeals erred in imposing an issue-exhaustion re-
quirement on petitioners’ Appointments Clause claims. Pp. 4–12.
(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 re-
quirements are typically creatures of statute or regulation. But where,
——————
* 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.
2 CARR v. SAUL
Syllabus
as here, no statute or regulation imposes an issue-exhaustion require-
ment, 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, 109. “[T]he
desirability of a court imposing a requirement of issue exhaustion de-
pends on the degree to which the analogy to normal adversarial litiga-
tion applies in a particular administrative proceeding.” Ibid. 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-
ing,” but is “much weaker” when “an administrative proceeding is not
adversarial.” Id., at 110. Although Sims dealt with administrative
review before the SSA Appeals Council, much of the opinion’s rationale
applies equally to SSA ALJ proceedings. Pp. 4–8.
(b) Even assuming that ALJ proceedings are comparatively more ad-
versarial 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
opinion). Pp. 8–12.
(1) In the specific context of petitioners’ Appointments Clause
challenges, two considerations tip the scales decidedly against impos-
ing an issue-exhaustion requirement. First, agency adjudications are
generally ill suited to address structural constitutional challenges,
which usually fall outside the adjudicators’ areas of technical exper-
tise. 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 Hospital Assn. v. Bowen, 485 U. S. 399, 405–406. Both con-
siderations 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. 9–11.
(2) The Commissioner’s contention that petitioners cannot obtain
new hearings because they did not “timely challenge” their adjudica-
tors’ appointments presumes what the Commissioner has failed to
prove: that petitioners’ challenges are, in fact, untimely. The Commis-
sioner’s reliance 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 re-
view scheme like the SSA’s. Pp. 11–12.
961 F. 3d 1267 and 963 F. 3d 790, reversed and remanded.
Cite as: 593 U. S. ____ (2021) 3
Syllabus
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., filed an opinion concurring in part and concurring in the judgment, in
which GORSUCH and BARRETT, JJ., joined. BREYER, J., filed an opinion
concurring in part and concurring in the judgment.
Cite as: 593 U. S. ____ (2021) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order that
corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 19–1442 and 20–105
_________________
WILLIE EARL CARR, ET AL., PETITIONERS
19–1442 v.
ANDREW M. SAUL, COMMISSIONER OF
SOCIAL SECURITY
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE TENTH CIRCUIT
JOHN J. DAVIS, ET AL., PETITIONERS
20–105 v.
ANDREW M. SAUL, COMMISSIONER OF
SOCIAL SECURITY
THOMAS HILLIARD, PETITIONER
v.
ANDREW M. SAUL, COMMISSIONER OF
SOCIAL SECURITY
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE EIGHTH CIRCUIT
[April 22, 2021]
JUSTICE SOTOMAYOR delivered the opinion of the Court.
When the Social Security Administration (SSA) denies a
claim for disability benefits, a claimant who wishes to con-
test that decision in federal court must first seek a hearing
before an administrative law judge (ALJ). The petitioners
here did just that: They each unsuccessfully challenged an
adverse benefits determination in ALJ proceedings, and
2 CARR v. SAUL
Opinion of the Court
they now ask for judicial review. Specifically, petitioners
argue that they are entitled to new hearings before differ-
ent 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 first to their respective
ALJs. The Court holds that petitioners did not forfeit their
claims.
I
The six petitioners in these consolidated cases each ap-
plied for disability benefits between 2013 and 2015.1 After
their applications were denied, petitioners followed the pre-
scribed steps for seeking administrative review. They
sought reconsideration of the agency’s initial determina-
tion, received a hearing before an ALJ, and requested re-
view by the SSA’s Appeals Council. See 20 CFR
§404.900(a). Petitioners were unsuccessful at every stage,
concluding with the Appeals Council, which denied discre-
tionary review.
This Court then held in Lucia v. SEC, 585 U. S. ___
(2018), that ALJs within the Securities and Exchange Com-
mission (SEC) had been unconstitutionally appointed. Un-
der the Appointments Clause, only the President, “Courts
of Law,” or “Heads of Departments” may appoint “Officers
of the United States.” Art. II, §2, cl. 2; see Lucia, 585 U. S.,
at ___ (slip op., at 5). The Lucia Court determined that SEC
ALJs were “Officers” rather than mere employees because
they held “a continuing office established by law,” exercised
——————
1 The Social Security Act provides disability benefits under two pro-
grams, Title II and Title XVI. Some petitioners sought benefits 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).
Cite as: 593 U. S. ____ (2021) 3
Opinion of the Court
“ ‘significant discretion’ when carrying out . . . ‘important
functions,’ ” and often had the last word in SEC proceedings.
Id., at ___–___ (slip op., at 8–10). Consequently, the ap-
pointment of SEC ALJs by SEC staff violated the Constitu-
tion. Id., at ___, ___ (slip op., at 3, 12).
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 ap-
pointments” of all SSA ALJs and “approv[ing] those ap-
pointments as her own.” 84 Fed. Reg. 9583 (2019). The
following year, the SSA issued a ruling stating that the Ap-
peals Council should, in response to timely requests for Ap-
peals Council review, vacate preratification ALJ decisions
and provide fresh review by a properly appointed adjudica-
tor. Ibid. That remedy was only available, however, to
claimants who had raised an Appointments Clause chal-
lenge in either their ALJ or Appeals Council proceedings.
Ibid. Claimants who had not objected to the ALJs’ appoint-
ments in their administrative 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 petition-
ers had forfeited their Appointments Clause challenges by
failing to raise them before the agency.
In three separate decisions (covering all six petitioners),
4 CARR v. SAUL
Opinion of the Court
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 pro-
ceedings. 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
challenge the constitutionality of an SSA ALJ’s appoint-
ment for the first time in federal court. See Cirko v. Com-
missioner of Social Security, 948 F. 3d 148, 152 (CA3 2020);
Probst v. Saul, 980 F. 3d 1015, 1020 (CA4 2020); Ramsey v.
Commissioner of Social Security, 973 F. 3d 537, 546 (CA6
2020). The Court granted certiorari to resolve this conflict.
592 U. S. ___ (2020).
II
Administrative review schemes commonly require par-
ties 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 require issue exhaustion based on “an analogy
to the rule that appellate courts will not consider argu-
ments not raised before trial courts.” Sims, 530 U. S., at
——————
2 Issue exhaustion should not be confused with exhaustion of adminis-
trative 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 re-
ceived a “final decision” before seeking judicial review. See 42 U. S. C.
§405(g).
Cite as: 593 U. S. ____ (2021) 5
Opinion of the Court
108–109. The Commissioner concedes that no statute or
regulation obligated petitioners to raise their Appoint-
ments 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 ju-
dicially created issue-exhaustion requirement in these
cases.
A
“[T]he desirability of a court imposing a requirement of
issue exhaustion depends on the degree to which the anal-
ogy to normal adversarial litigation applies in a particular
administrative proceeding.” Sims, 530 U. S., at 109. In
conducting this inquiry, courts must take care not to “re-
flexively ‘assimilat[e] the relation of . . . administrative bod-
ies and the courts to the relationship between lower and
upper courts.’ ” Id., at 110 (quoting FCC v. Pottsville Broad-
casting Co., 309 U. S. 134, 144 (1940)). Instead, “[t]he in-
quiry requires careful examination of ‘the characteristics of
the particular administrative procedure provided.’ ” 530
U. S., at 113 (O’Connor, J., concurring in part and concur-
ring in judgment) (quoting McCarthy v. Madigan, 503 U. S.
140, 146 (1992)). The critical feature that distinguishes ad-
versarial proceedings from inquisitorial ones is whether
claimants bear the responsibility to develop issues for adju-
dicators’ consideration.3
——————
3 The Commissioner invokes the “general rule,” recognized in cases
such as L. A. Tucker Truck Lines, that “orderly procedure and good ad-
ministration require that objections to the proceedings of an administra-
tive 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. Aragon, 329 U. S. 143, 154–155 (1946). That general rule, how-
ever, originated in cases that “each involved an adversarial proceeding.”
Sims v. Apfel, 530 U. S. 103, 110 (2000). Where claimants are not ex-
6 CARR v. SAUL
Opinion of the Court
With respect to the nature of the SSA proceedings at is-
sue 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 final stage of administrative re-
view within the SSA) are nonetheless preserved for judicial
review. In so holding, the Court explained that “the ra-
tionale 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 administrative proceeding is not adversarial.”
530 U. S., at 110.
The plurality went on to explain that “[t]he differences
between courts and agencies are nowhere more pronounced
than in Social Security proceedings,” where administrative
“proceedings 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 Commis-
sioner serves “just as an adviser to the Council.” Ibid.
Claimants are not required to file 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
——————
pected to develop certain issues in ALJ proceedings, it is generally inap-
propriate to treat those issues as forfeited. See id., at 109 (“[C]ourts re-
quire 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)).
Cite as: 593 U. S. ____ (2021) 7
Opinion of the Court
the form estimates that it will take only 10 minutes to ‘read
the instructions, gather the necessary facts and fill out the
form.’ ” Ibid. Thus, in the context of Appeals Council re-
view, the plurality observed that the “adversarial develop-
ment of issues by the parties . . . on which [the judicial-pro-
ceedings] 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 “sufficient basis” for refusing
to impose one by judicial decree. Id., at 113. “Requiring
issue exhaustion is particularly inappropriate,” she ex-
plained, “where the regulations and procedures of the [SSA]
affirmatively suggest that specific issues need not be raised
before the Appeals Council.” Ibid.
Much of what the Sims opinions said about Appeals
Council review applies equally to ALJ proceedings. The
Sims plurality itself noted that “[i]t is the ALJ’s duty to in-
vestigate the facts and develop the arguments both for and
against granting benefits” and that “[t]he Commissioner
has no representative before the ALJ to oppose the claim
for benefits.” Id., at 111. The SSA regulations that ensure
informal, 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 “reg-
ulations provide no notice that claimants must . . . raise
8 CARR v. SAUL
Opinion of the Court
specific issues before” the ALJ “to preserve them for review
in federal court.” Sims, 530 U. S., at 113 (opinion of O’Con-
nor, J.).
B
The parallels between ALJ and Appeals Council proceed-
ings are many, but the Commissioner correctly notes sev-
eral differences that may make ALJ hearings relatively
more adversarial. For one, ALJ hearings are typically
available as a matter of right, while Appeals Council review
is discretionary. Compare 20 CFR §404.957 with §404.967.
Most claimants thus submit no more than a one-page re-
quest for review to the Appeals Council before having their
request denied. Mandatory ALJ proceedings, by contrast,
present far more opportunities for claimants to press is-
sues, and the SSA consequently relies more heavily on
those proceedings to “conduc[t the agency’s] principal and
most thorough investigation of . . . disability claim[s].”
Brief for Respondent 35–36. Additionally, before every
hearing, the SSA mails claimants a “notice of hearing” that
includes logistical information and lists the “[t]he specific
issues to be decided in [the] case.” §404.938(b)(1). Claim-
ants must notify the ALJ in writing if they “object to the
issues to be decided at the hearing.”4 §404.939. Similarly,
SSA conflict-of-interest regulations instruct claimants to
“notify the [ALJ] at [the] earliest opportunity” if they “ob-
ject 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 pro-
ceedings at issue here were adversarial enough to support
——————
4 As discussed above, see supra, at 5, the Commissioner “do[es] not ar-
gue that these regulations themselves impose a forfeiture rule that ap-
plies here.” Brief for Respondent 35, n. 2.
Cite as: 593 U. S. ____ (2021) 9
Opinion of the Court
the “analogy to judicial proceedings” that undergirds judi-
cially created issue-exhaustion requirements. Sims, 530
U. S., at 112 (plurality opinion). In the specific context of
petitioners’ Appointments Clause challenges, two addi-
tional considerations tip the scales decidedly against impos-
ing an issue-exhaustion requirement.5
1
First, this Court has often observed that agency adjudi-
cations are generally ill suited to address structural consti-
tutional challenges, which usually fall outside the adjudica-
tors’ 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
constitutional challenges to statutes or other agency-wide
policies even when those challenges were not raised in ad-
ministrative proceedings.6 See, e.g., Mathews v. Diaz, 426
U. S. 67, 76–77 (1976). Thus, this Court observed in
Mathews v. Eldridge, 424 U. S. 319 (1976), that, so long as
a Social Security claimant “had exhausted the full set of
available administrative review procedures” (as petitioners
did here), “failure to have raised his constitutional claim
——————
5 Outside the context of Appointments Clause challenges, such as in
the sphere of routine objections to individual benefits 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 claim-
ant’s procedural due process challenge to the admissibility of an adverse
medical report, explaining (among other reasons) that “[a]lthough the
claimant complain[ed] of the lack of opportunity to cross-examine the re-
porting physicians, he did not take advantage of the opportunity” to sub-
poena the physicians. Id., at 404. Perales thus stands for the uncontro-
versial (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.
10 CARR v. SAUL
Opinion of the Court
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);
Montana Nat. Bank of Billings v. Yellowstone County, 276
U. S. 499, 505 (1928). It makes little sense to require liti-
gants to present claims to adjudicators who are powerless
to grant the relief requested. Such a vain exercise will
rarely “protec[t ] administrative agency authority” or “pro-
mot[e] judicial efficiency.” 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 mul-
tiple cases could have led ‘to a change of policy.’ ” Brief for
Respondent 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 op-
portunity 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
full Commission might have persuaded it to change its “pre-
determined 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
challenges. Nor were the ALJs capable of remedying any
defects in their own appointments. After all, there were no
Commissioner-appointed ALJs to whom objecting claim-
ants’ cases could be transferred, and the ALJs could not
very well have reappointed themselves.
Internal SSA guidance confirms as much. On January
Cite as: 593 U. S. ____ (2021) 11
Opinion of the Court
30, 2018, soon after this Court granted certiorari in Lucia,
the agency issued an “emergency message” to ALJs advis-
ing 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
finally decide constitutional issues such as these,” they
should “not discuss or make any findings 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 chal-
lenge.’ ” Ibid. The SSA reiterated these instructions in a
second emergency message issued shortly after Lucia was
decided.7 See SSA, EM–18003 REV: Important Information
Regarding Possible Challenges to the Appointment of Ad-
ministrative Law Judges in SSA’s Administrative Pro-
cess—UPDATE, pp. 1–2 (June 25, 2018). It was not until
March 2019 that the Acting Commissioner finally in-
structed the Appeals Council on how to handle preratifica-
tion Appointments Clause challenges. See 84 Fed. Reg.
9582; supra, at 3.
2
Taking a somewhat different tack, the Commissioner
contends that petitioners are not entitled to new hearings
before constitutionally appointed ALJs because they failed
——————
7 Although the agency issued its internal guidance several months af-
ter petitioners’ ALJ hearings concluded, there is no indication that the
ALJs would or could have adjudicated an Appointments Clause chal-
lenge at any time. Moreover, as a practical matter, the agency’s emer-
gency messages belie the Commissioner’s suggestion that the SSA would
have changed course if only it had been “ ‘put on notice of the accumulat-
ing risk of wholesale reversals.’ ” Brief for Respondent 45 (quoting L. A.
Tucker Truck Lines, 344 U. S., at 37).
12 CARR v. SAUL
Opinion of the Court
to make “timely challenge[s]” to their adjudicators’ appoint-
ments. Ryder v. United States, 515 U. S. 177, 182 (1995);
Lucia, 585 U. S., at ___ (slip op., at 12) (quoting Ryder).
That argument, however, presumes what the Commis-
sioner has failed to prove: that petitioners’ 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 admin-
istrative 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 traditional 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 Commis-
sion, 585 U. S., at ___–___ (slip op., at 2–3), in which a stat-
utory issue-exhaustion requirement applies, 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
issues for the first time in federal court are not untimely in
doing so.
* * *
Taken together, the inquisitorial features of SSA ALJ
proceedings, the constitutional character of petitioners’
claims, and the unavailability of any remedy make clear
that “adversarial development” of the Appointments Clause
issue “simply [did] not exist” (and could not exist) in peti-
tioners’ ALJ proceedings. Sims, 530 U. S., at 112 (plurality
opinion). The Courts of Appeals therefore erred in imposing
an issue-exhaustion requirement on petitioners’ Appoint-
ments Clause claims. The judgments of the Eighth and
Tenth Circuits are reversed, and the cases are remanded
for further proceedings consistent with this opinion.
It is so ordered.
Cite as: 593 U. S. ____ (2021) 1
Opinion of THOMAS, J.
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 19–1442 and 20–105
_________________
WILLIE EARL CARR, ET AL., PETITIONERS
19–1442 v.
ANDREW M. SAUL, COMMISSIONER OF
SOCIAL SECURITY
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE TENTH CIRCUIT
JOHN J. DAVIS, ET AL., PETITIONERS
20–105 v.
ANDREW M. SAUL, COMMISSIONER OF
SOCIAL SECURITY
THOMAS HILLIARD, PETITIONER
v.
ANDREW M. SAUL, COMMISSIONER OF
SOCIAL SECURITY
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE EIGHTH CIRCUIT
[April 22, 2021]
JUSTICE THOMAS, with whom JUSTICE GORSUCH and
JUSTICE 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
Administration are plainly nonadversarial: The regulations
2 CARR v. SAUL
Opinion of THOMAS, J.
assure claimants that the agency will “conduct the admin-
istrative 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 in-
formal 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 adversarial suit in which parties are expected to iden-
tify, argue, and preserve all issues.
To be sure, a few regulatory provisions direct claimants
to advocate on their own behalf by objecting to problems,
including if the agency misidentifies issues before the hear-
ing or if the ALJ is “prejudiced or partial.” §§404.938–
404.940. 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 surpris-
ing in light of the flexible, “informal” mechanisms that un-
dergird the entire agency review process. §404.900(b); see
also Sims, 530 U. S., at 110 (plurality opinion) (“The differ-
ences between courts and agencies are nowhere more pro-
nounced 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.
Cite as: 593 U. S. ____ (2021) 1
Opinion of BREYER, J.
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 19–1442 and 20–105
_________________
WILLIE EARL CARR, ET AL., PETITIONERS
19–1442 v.
ANDREW M. SAUL, COMMISSIONER OF
SOCIAL SECURITY
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE TENTH CIRCUIT
JOHN J. DAVIS, ET AL., PETITIONERS
20–105 v.
ANDREW M. SAUL, COMMISSIONER OF
SOCIAL SECURITY
THOMAS HILLIARD, PETITIONER
v.
ANDREW M. SAUL, COMMISSIONER OF
SOCIAL SECURITY
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE EIGHTH CIRCUIT
[April 22, 2021]
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 ar-
guments 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 Secu-
rity Administration, a claimant “ordinarily must raise all
2 CARR v. SAUL
Opinion of BREYER, J.
relevant issues before the ALJ” and that the “nonadversar-
ial nature” of the agency’s procedures is generally irrele-
vant to whether the ordinary rule requiring issue exhaus-
tion 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 9–11; 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., con-
curring in part) (recognizing 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.