- Appointments Clause Claims | Issue Preclusion
- David Chermol | Thomas Sutton
- Course Levels:
- All Skill Levels
- 1 Hour
- Audio and Video
In 2018, the Supreme Court held in Lucia that ALJs at the SEC are Officers of the United States and must be appointed as required by the Appointments Clause of Article II of the U.S. Constitution. SSA conceded that its ALJs are also subject to the Appointments Clause and reappointed them on July 16, 2018. However, SSA has insisted that claimants who did not raise this issue during administrative proceedings cannot raise it for the first time in federal court. In Cirko v. Comm’r of Soc. Sec., 948 F.3d 148 (3d Cir. 2020) and Ramsey v. Comm’r of Soc. Sec., ___ F.3d ___, 2020 WL 5200979 (6th Cir. Sept. 1, 2020), the Third and Sixth Circuits held that issue exhaustion is not required in Social Security cases with respect to the Appointments Clause issue. The attorneys who argued these cases will discuss the implications of these rulings, including the contrary decisions in the 8th and 10th Circuits, and the imperative to raise this issue in every pending case at any level of review.
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Chermol & Fishman, LLC
David Chermol is the Lead Partner at Chermol & Fishman, LLC, a law firm that focuses on federal court appeals of unfavorable ALJ decisions across the entire United States. Mr. Chermol is a former GS-15 Special Assistant United States Attorney for SSA-OGC. He served as co-chair of the Philadelphia Bar Association’s Social Security Disability Committee for several years. In March of 2014, he was awarded the National Association of Disability Representatives’ Member of the Year Award. Mr. Chermol serves by court appointment as the Social Security disability pro se appeals panel coordinator in the Eastern District of Pennsylvania. During the 2008 campaign, he served as regional co-director on disability issues in Pennsylvania for the Obama campaign. He handles federal court appeals for other disability attorneys in all 50 states.
Thomas D. Sutton is a Past President and current member of the Board of Directors of the NOSSCR. Mr. Sutton has represented thousands of individual disability claimants’, and served as co-counsel in the United States Supreme Court in Sullivan v. Zebley, 493 U.S. 521 (1990), a successful nationwide class action on behalf of over 400,000 disabled children. Mr. Sutton has successfully litigated hundreds of cases in the federal courts, including precedential opinions from the United States Court of Appeals for the Third Circuit in Ramirez v. Barnhart, 372 F.3d 546 (3d Cir. 2004), Markle v. Barnhart, 324 F.3d 182 (3d Cir. 2003), and Walton v. Halter, 243 F.3d 703 (3d Cir. 2001). He has lectured extensively on disability law throughout the United States, has testified before Congressional committees, and has served as a faculty member for numerous seminars sponsored by the Pennsylvania Bar Institute, the United States District Court for the Eastern District of Pennsylvania, and several state bar associations. Mr. Sutton is a graduate of Haverford College and the University of Pennsylvania Law School.