THE APPOINTMENTS CLAUSE,
PART II: THE SECOND CIRCUIT
AND FLINTON
By
Prof. Anthony Michael Sabino
In the first installment of this two-part article, we analyzed Kennedy v. Braidwood Management, Inc., 606 U.S. ___ (No. 24-316) (June 27, 2025), the U.S. Supreme Court’s newest addition to the Appointments Clause pantheon. This second writing exposits the current internecine conflict amongst the federal appellate courts regarding the appropriate remedy for a violation of the Clause’s provisos, focusing upon the Second Circuit’s very recent contribution to that constantly evolving jurisprudence.
The Appointments Clause Violated
Flinton v. Commissioner of Social Security, ___ F.4th ___ (No. 23-7715-cv) (2d Cir. July 2, 2025), informs us that in March, 2018 the plaintiff was denied Social Security disability benefits by an in-house adjudicator. However, barely three months later, Lucia v. S.E.C., 585 U.S. 237 (2018), proclaimed that administrative law judges who were not appointed by the President, with the advice and consent of the Senate, held office in violation of the Appointments Clause. See U.S. Const., Art. II, § 2, cl. 2. The Supreme Court furthermore decreed that such a constitutional infraction must be rectified by reassigning the case to a different, properly appointed ALJ. Notwithstanding that directive, Flinton’s case was returned to the same hearing officer, who denied her claims for a second time.
Now before the appellate bench, Flinton complained that, without a fresh adjudicator, the remand had been similarly “infected by an uncured unconstitutional violation.” The government countered that any detritus of the prior Appointments Clause breach had been sponged away by the subsequent reappointment of the presiding officer in a manner consistent with Article II; moreover, the slate had been wiped clean by the merits-based vacatur of that official’s prior decision.
The U.S. Court of Appeals for the Second Circuit agreed with the claimant, declaring that “since Flinton did not receive Lucia’s remedy of a hearing before a different ALJ,” the follow-on proceeding “was still marred by the prior Appointments Clause violation.” And mindful of intercircuit dissension on this issue, the panel announced it was siding with the Fourth and Ninth Circuits, while “parting ways” with the Eleventh Circuit in regard to this controversy.
Following Lucia
Flinton accorded the greatest weight to the dual linchpins undergirding Lucia: first, the high Court’s conclusion that an administrative law judge cannot be expected to render a second judgment as if presiding over the controversy for the first time; and second, the supreme tribunal’s clear edict that the same officer is prohibiting from conducting a subsequent hearing, even if that individual now benefits from a proper Article II appointment.
In a parenthetical, Lucia had expounded that Appointment Clause challenges do more than advance structural purposes. Circuit Judge Lee now relied upon that passage for finding that, since an incumbent ALJ would have no reason to think she had erred, Article II violations are best solved by assigning a fresh adjudicator. Admittedly, the Supreme Court had stipulated that not every Appointments Clause misstep requires a new hearing officer; nevertheless, opined Flinton, the remedy of remanding to a substitute adjudicator “presumptively applies,” especially where there is no lack of constitutionally qualified administrative law judges.
The tribunal then paused momentarily to contemplate Carr v. Saul, 593 U.S. 83 (2021), which likewise arose from an ALJ’s denial of Social Security benefits. There the high Court extrapolated from Lucia that Article II challenges may be raised for the first time before an Article III jurist, and are exempt from any issue-exhaustion prerequisite. In the case at bar, it was of no consequence that the claimant occupied a posture distinct from the petitioners in Carr because the government “did not raise [the issue-exhaustion] defense before the district court or on [this] appeal.”
The Circuits in Accord
Now turning to elaborate upon the internecine conflict dividing the courts of appeals (as well as the Second Circuit’s own district judges), the panel now declared unity with tribunals to the west and south. Its first alliance was with the Ninth Circuit, and the latter’s conclusion in Cody v. Kijakazi, 48 F.4th 956 (9th Cir. 2022), that referral to an entirely new adjudicator was essential to rectifying any contravention of the Appointments Clause.
There the incumbent ALJ had copied, verbatim, portions of the initial decision into the second judgment, demonstrating that the presumed solution of a proper Article II reappointment of the same official does not cure the constitutional defect. Rather, opined the westernmost circuit, assigning a fresh hearing officer is the optimal path to satisfying the “remedial aims” of Lucia, among them, propagating the structure and intent of Article II, and encouraging litigants to raise Appointments Clause claims.
Next, the Second Circuit joined itself to the Fourth Circuit’s holding in Brooks v. Kijakazi, 60 F.4th 735 (4th Cir. 2023), an opinion remarkably similar to Cody, yet with the significant addendum that a merits-based vacatur of a prior outcome does not wipe away the stain of an earlier Appointments Clause offense nor does it obviate the need for a different ALJ. The New York tribunal concurred that Lucia did not authorize halfway measures. Wherever a previous judgment is “tainted with an [A]ppointments [Clause] violation,” opined Circuit Judge Lee, nothing less than total relief will suffice. Merits-based vacaturs simply cannot surmount the difficulty inherent in asking the same adjudicator to consider the matter as if she had not heard it before. Flinton, supra, slip op. at 15-16 (internal citations and quotations omitted).
The Circuits in Conflict
Notwithstanding that the Second Circuit made common cause with the Ninth and Fourth, the panel was eminently fair in expositing the contrary view, as exemplified by the Eleventh Circuit in Raper v. Commissioner of Social Security, 89 F.4th 1261 (11th Cir. 2024), cert. denied sub nom., Raper v. O’Malley, ___ U.S. ___, 145 S. Ct. 984 (2024). There the southern tribunal ruled that a merits-based vacatur of an administrative decision effectively stamps out an earlier Appointments Clause infraction.
The Eleventh Circuit’s rationale was threefold: vacatur eradicates the original decision; erasing the prior judgment moots Lucia’s remedial aim of encouraging constitutional challenges; and reverting to the same ALJ is equivalent to an appellate remand to a trial court. As such, nothing should forestall the same official from presiding over a second hearing, assuming, of course, there has been an intervening reappointment consonant with Article II.
The Second Circuit Joins the Controversy
Flinton was unmoved. The Second Circuit steadfastly maintained that Lucia not only mandates a hearing de novo before a properly seated administrative law judge, it likewise prohibits the original adjudicator from hearing the controversy for a second time. “There would be no need for the second component of the remedy if any Appointments Clause violation were fully ameliorated by a plenary hearing before any properly appointed ALJ” (internal quotation and citation omitted). In contradistinction to its southernmost peer, this appellate court declined to interpret Lucia’s “proffered rationales as imposing preconditions” for the application of particular solutions.
In sum, Flinton concluded that Lucia “did not carve out any exceptions” to its well-defined response to Article II violations, and this tribunal was “not at liberty to create one here.” Having “suffered an unalleviated Appointments Clause violation,” this plaintiff had the right to a substitute ALJ.
For sake of completeness, the Second Circuit characterized as a “nonstarter” the government’s assertion that reversion to the identical hearing officer was permissible. While acknowledging the adjudicator’s second decision “did materially differ from his earlier determination,” that was not enough to assuage the panel’s grave doubts that this same ALJ had truly reconsidered the matter anew.
Almost as an aside, the tribunal took a final note of the Ninth Circuit’s apparent willingness to indulge in an “ad hoc exercise” of quantifying any taint to a follow-on decision rendered by a returning adjudicator. Disinclined to endorse any such additional inquiry, the Second Circuit cast itself more in line with the Fourth Circuit’s stance, agreeing that, even if the same appointee subsequently takes office in a manner consistent with Article II, there is irreversible contamination from the initial Appointments Clause miscue.
For its coda, the appellate bench reaffirmed that Lucia’s directives control, most especially its command that the best relief for an Article II transgression is proceeding anew before a fresh ALJ. Said landmark makes no exemptions for merits-based vacaturs, and “does not invite ex post scrutiny” to determine if a hearing officer’s second holding is “dissimilar enough…to be sufficiently untainted” by the initial decision. Indeed, the Second Circuit found persuasive the claimant’s allegation that failing to refer a case to a different administrative law judge whenever there is a merits-based vacatur, while awarding a new ALJ to a litigant who had endured only a constitutional infraction, would cast dysfunction into the Supreme Court’s well-crafted framework for resolving Appointments Clause controversies.
Conclusion
Flinton aptly illustrates that the appellate courts are in discord regarding the appropriate remedy for an Appointments Clause violation; high Court intervention is therefore inevitable. Just as Lucia gave impetus to the current disharmony, we forecast that Kennedy and Flinton both shall be the progenitors of new constitutional challenges predicated upon different aspects of Article II. In sum, the Appointments Clause is constantly evolving, and we look forward to the Supreme Court continuing in its never-ending task of refining that vital guarantor of liberty.
Prof. Anthony Michael Sabino, partner, Sabino & Sabino, P.C., is also a Professor of Law, Tobin College of Business, St. John’s University. Anthony.Sabino@sabinolaw.com.
FINAL APPTS CLAUSE FLINTON PT. II v.2A
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